VIEWS 



OP 

3& 



AMERICAN CONSTITUTIONAL LAW, 



IN ITS BEARING UPON 



AMERICAN SLAVERY. 



BY WILLIAM GOODELL. 



"The Reasonableness of Law is the soul of Law." — (Jenfrs.) Common 
Law Maxim. 



UTICA, N. Y. 

PUBLISHED BY JACKSON & CHAPLIN 
1844. 



/ 



'%. 



Eatered according to the Act of Congress, in the year 1S44, by 

WILLIAM GOODELL, 

In the Clerk's Office of the District Court of the United States, for the 

Northern District of New York. 



R. W. ROBERTS, PRINTER, 

58 Genesee Street, 
UTICA. 



INTRODUCTION. 

Sure triumph of truth — Former construction of the British Constitution, hy 
York, Talbot, Blackstone, and Mansfield — New construction involved in the 
decision of Lord Mansfield, in the Somerset Case, (1772) — Revolution in 
English Jurisprudence — Secret of that Revolution — Granville Sharpe— Origin 
and foundation of law, immutable and eternal. 

The main views I have presented will assuredly be con- 
demned, — and in that condemnation I read the sure presage 
of their prevalence. — They will be condemned, in this sel- 
fish and bewildered world, because they are true, and they 
will ultimately triumph, for the same reason. The popular 
suffrage may determine whether they shall be received in 
time to prevent the wreck of the present Federal Govern- 
ment : — but it can no more decide against their final recep- 
tion than it can decide against the final reception of any other 
truths of science, physical or moral. There is immortality 
in Truth. But all lies are doomed. 

Up to the month of May, 1772, it was as currently believ- 
ed in England, that the slaves held and sold there, were 
thus held and sold, legally, and in accordance with the Bri- 
tish Constitution, as it is now believed that the slaves held 
and sold in the United States of America, are thus held and 
sold, legally, and in accordance with the American Constitu- 
tion. But the decision of Lord Chief Justice Mansfield, in 
the case of James Somerset, at the date above mentioned, 
revolutionized the jurisprudence of the realm, overthrew 
ancient precedents, reversed venerated decisions — and in- 
scribed beneath the cross of St. George, on the royal flag — 
" slaves can not breathe in Engla?id." 

And what was the secret of that mighty revolution ? — It 
was this. — The simple foundation truth of all legitimate and 
valid jurisprudence, divine and human, that Right is author- 
ity — that reason is the soul of law, had obtained a lodgment 
in one human heart, that truly apprehended its meaning, and 



4 INTRODUCTION. 

did not hold it an idle abstraction. That heart was not the 
heart of a York or a Talbot, (the Attorney and Solicitor 
General of their day,) who, in 1729 had recorded their opin- 
ions in favor of the slave master's claim. It was not the 
heart of a titled judge, Dr. Blackstone, who, at a later day, 
finding that a passage in his learned Commentaries was ef- 
fectively quoted, at pending trials, in favor of the rights of 
the enslaved, adroitly furnished a new and revised edition 
of them, in season to be used, triumphantly, during the trials, 
by the slave master's counsel. It was not the heart of Sir 
James Eyre, Recorder of London; who, when retained as 
counsel, on behalf of the oppessed, adduced, to dishearten 
his employer, the opinions of York and Talbot, and added 
that the Lord Chief Justice was agreed with them. It was 
not the heart of any one of those eminent lawyers who, when 
consulted by the friends of the enslaved, declared " that the 
laws were against them." It was not the heart of that Lord 
Chief Justice Mansfield himself, whom history has ranked 
with " the most distinguished lawyers" of that age, and who 
along with them, " crouched down beneath the lie" (of legal 
enslavement) and " affirmed its validity" — the same Lord 
Chief Justice, who in 1771 (one year before his own immor- 
tal decision against legal slavery) was so firmly attached to 
the ancient precedents in its favor, as to refuse giving judg- 
ment against the noted kidnapper, Stapylton, when an hon- 
est jury had given verdict against him ; — that Chief Justice 
Mansfield, who, during this same Somerset trial, when over- 
powered by the argument for liberty, and dreading the pub- 
lic rebuke, delayed judgment, hesitated, sought, unsuccess- 
fully, to shun the issue, by beseeching the slave master to 
manumit the slave, and whose final decision (the boast and 
glory of his country) was delivered with a " lawyer-like cir- 
cumlocution" that betrayed the inward bent of his mind, and 
the reluctance with which he yielded to the claims of equity, 
and the rising voice of human nature.* 



* See Charles Stuart's Memoir of Granville Sharpe, which contains in detail, the 
particulars above alluded to. 



INTRODUCTION. 5 

No ! It was not to hearts like these, that the u soul" and 
vitality of British Constitutional Law, and of all law, were 
revealed ! It was reserved to Granville Sharpe, without 
rank, without office, without literary pretension, or legal 
erudition, in the face of all the law authorities of his age and 
nation, to plant himself upon the right and the true, to breast 
the current, almost single handed, and alone, till he saw the 
Right prevail, and Mansfield officially announce it — and 
Blackstone condescendingly record and endorse it — thus 
rearing a column of glory under which their own learned 
lumber, with that of Talbot and York, lies buried out of 
sight, among rubbish of the dark ages ! Thus shall it al- 
ways be ! 

Whether my argument has been happily presented, time 
and the public voice must determine, though they can not 
nullify the truths I present. I only ask the candid reader to 
weigh the evidences of those truths. I will not dishonor his 
reason by asking him whether the reception and practice of 
them would degrade our common humanity, or offend our 
benevolent Creator. There is neither legitimate authority, 
nor binding precedent, nor valid law, except in harmony 
with His will. Let the Yorks and the Talbots, the Black- 
stones and the Mansfield's of America understand that : — 
and let them remember their relation to the people, to whom 
Divine Providence is rapidly teaching the alphabet of that 
sublime truth. It is for the people I have written ; — for the 
peojyle, by the grace of God, and under his authority, free, 
independent and sovereign — the divinely appointed arbiters 
of their own destinies, the students (if they will understand 
themselves) and the subjects, not the framers, nor yet the 
arbiters of those original laws, immutable and eternal, upon 
which human nature itself was modelled, and from the sure 
operation of which, no age, no nation, no race of men ever 
escaped. 



GENERAL NOTE. 

In the preparation of these pages, I have had recourse 
to whatever, * within my reach, was thought adapted to 
throw li^ht on the tonics under discussion. I have availed 
myself, freely, of the researches of my fellow-laborers, in 
the cause of human freedom, who, in their constitutional 
investigations, have preceded me. Very few of them, 
have looked, however, in the direction at which I have 
aimed, and those few have confined their inquiries to only 
one or two points, and built their argument on much nar- 
rower grounds. The right to restrict slavery, on the ad- 
mission of new States, the power of Congress over the Fed- 
eral District and Territories, and over the inter State slave- 
trade, the constitutionality of the law of '93 — the obligation 
to return fugitive slaves — the right of trial by jury — the ag- 
gressions of the slave codes on the rights of the free States 
— the right of petition — the freedom of speech and of the 
press — these have been the more common topics of discus- 
sion, and the argument is perhaps exhausted, on the com- 
monly occupied grounds. — In the field I have now entered, 
the marks of occupancy are comparatively scarce and new. 
Yet many implements wielded in other departments may 
find a place here. 



CHAPTER I. 
THE QUESTION AT ISSUE. 

Its meaning and magnitude — Impossibility of evasion — Testimony of 
Amercan Statesmen — No middle ground — Illustrative politics of the country 
— State action — Action of the Federal Government — The alternative. 

Do we live under a free Government, or a despotism ? 
Does the organic law of our National Government enable it 
to " establish justice V* Or is it founded upon a " compro- 
mise" with injustice 1 Does it " secure the blessings of lib- 
erty" to its founders and their " posterity,"* or does it guar- 
anty the curses of slavery to large and increasing numbers 
of them and ensure the ultimate wreck of the whole nation's 
freedom 1 Does it " form a more perfect union," or does it 
by "permitting" one half of the citizens t to trample upon 
the rights of the other, transform those into despots, and 
these into enemies V — thus drawing down upon itself the 
" execration" of wise statesmen ] Does it " ensure domes- 
tic tranquility," or does it " guaranty" or tolerate by " com- 
promise" the most perfect possible specimen of" domestic" 
disorder % Does it " provide for the common defense," or 
does it " compromise" the security of the most defenseless 
of its citizens — " guaranty" or permit the successful invasion 
of all their rights, and " guaranty" likewise, or permit, by 
" compromise" the well known cause of all our great expo- 
sure to internal commotion — the admitted and insuperable 
obstacle to any effective defense against a foreign invasion, 
by a " third rate maritime power V s Does it "provide for 
the general welfare," or does it " compromise" that welfare, 
"guaranty" its deadliest enemy, and bind its citizens to 
stand ready, at a moment's warning, to engage in a bloody 
contest against liberty, against their own declaration of self- 
evident truths, against man's inalienable rights — "a contest" 
in which " no attribute of the Almighty could take sides 
with them V Is it a Government in favor of human improve- 
ment, human liberty, and human happiness, or against them'? 

*"The noblest blood of Virginia' suns in the veins of slaves." 

t In this expression of Jefferson, observe the conceded citizenship of the enslaved. — 
Are American citizens enslaved legally ? And without a violation of the America* 
Constitution .? •> 



O AMERICAN CONSTITUTIONAL LAW. 

In favor of virtue and morality or against them 1 Is it a 
Government in accordance with the Divine will or against it? 

These questions are propounded, not in respect to any, or 
to all the successive administrations of the National Govern- 
ment, but in regard to its original organic structure — its 
inherent nature and character — its Constitutional Law. 

Is the Constitution of the United States, rightly ex- 
pounded, in favor of liberty or against it *? In favor of 
slavery or against it 1 Does it " secure liberty" and accor- 
dingly prohibit its opposite — slavery ? Or does it rest upon 
a " compromise" with slavery, or a " guaranty" of slavery, 
and therefore " compromise" the question of liberty, or 
" guaranty" its downfall % 

In other words, is the Constitution of the United States, 
in truth and reality, what it professes, in its Preamble, to be 
— or is it, at bottom, the very opposite of its high profes- 
sions 1 Is it a delusion — a deception — a fiction — a sham % 
Should the friends of liberty, of human nature, and of the 
loving Father of human nature, cling to, and cherish it 1 ? 
Should they labor to disabuse it, and wield it, for its profess- 
ed and its real ends 1 — Or on the other hand, should they 
abandon all hope from that quarter ] Should they expect 
from it, (faithfully administered, and in accordance with its 
true character,) no desirable union, no establishment of jus- 
tice, no assurance of domestic tranquility, no provision for 
the common defense, no promotion of the general welfare, 
no guaranty of the blessings of liberty to themselves and 
their posterity ? Is it incapable of securing those " inalien- 
able rights, life, liberty, and the pursuit of happiness" — for 
the securing of which, governments are instituted amono- 
men, deriving their just powers (under God) " from the 
consent of the governed ?" Are its powers too " limited" to 
" secure" those rights'? Does it " compromise" and has it 
therefore " become destructive of these ends %" And is it 
accordingly, " the right of the people to alter or to abolish 
it, and to institute a new government, laying its foundation 
on such principles, and organizing its powers in such form, 
as to them shall seem most likely to effect their safety and 
happiness 1" Is the right of revolution our only avenue to 
the security of all those other rights which our forefathers 
sought to secure and perpetuate, when, in their enterprise 
of founding a new government, they " appealed to the Su- 
preme Judge of the world for the rectitude of their inten- 
tions" and " mutually pledged to each other, their lives, their 
fortunes, and their sacred honor V 



american constitutional law. • 

Impossibility of Evasion. 

The point, and significancy of these questions are not to 
be evaded, or turned aside, by the customary references 
made to the peculiar structure of our Government — the lim- 
itations of the Federal authority— the unimpaired sovereignty 
of the several States — the alleged " compromises" or " guar- 
anties" essential to the adoption of the Federal Constitution, 
in the first place, or to a continuance of the Union cemented 
by it, now. On all these points, and on all others of the 
same complexion, the persons who bring them forward may 
make such statements as they may think proper — may adopt 
such theories as they may prefer, and for the argument's 
sake, (so far as the positions of this chapter are concerned) 
we may admit either one, or another, or all, of those state- 
ments and theories to be correct — without changing or mod- 
ifying, in the slightest degree, the issue we have made up, 
and presented. Such considerations can not change or avert 
the issue, though they may help to decide it. 

The question is, whether the structure of our National Go- 
vernment, (whatever it may he, in detail, and whatever cir- 
cumstances may have shaped it) is such, in matter of fact, as 
to enable it to "secure liberty" and repress despotism? 
Whether it can protect human rights, and prevent violations 
of them % — Whether it is competent to do the things promised 
to the People, and to posterity, in its Preamble 1 Or whether, 
from any cause, it is so " limited"— " balanced"— " compro- 
mised," " guarantied," crippled, forestalled, fettered, thumb- 
screwed, and gagged; that it can do nothing of the land ? 

Is it, what it professes to be, a civil government, empow- 
ered to " establish justice" (to "execute judgment between a 
man and his neighbor") " to ensure domestic tranquility, 
provide for the common defense, and secure the blessings 
of liberty to ourselves, and our posterity IV Or on the other 
hand, was there a mistake made, in supposing that the pro- 
visions of the Constitution in detail, were such as to permit 
and enable the Government to accomplish these high ends % 

It has, somehow, come to pass, that the people of the 
twenty-six States constitute one nation— and are bound up, 
in one and the same destiny. This is the admitted fact. It 
is claimed, too, that the Federal Constitution contains a de- 
scription of the arrangements by which they are thus bound. 
What are those arrangements I Do they describe a civil 
government % Or only a confederacy 1 Or a treaty between 
disunited States 1 If they describe (as will be conceded by 



10 AMERICAN CONSTITUTIONAL LAW. 

most men) a civil government? over united States — what is 
that government, in the essential elements of its character 1 
Is it a free government or a despotism ] Is it in favor of lib- 
erty or of slavery ? — Both, or neither, it can not be. One or 
the other, it undoubtedly IS. 

If we have a civil government, deserving the name it em- 
bodies, of course, the vital elements of all valid civil govern- 
ment. What these elements are, we shall consider as we pro- 
ceed ; — If we have what professes to be a civil government, 
and yet lacks these vital elements, it is high time we had de- 
tected the cheat. We fay enough for the support of it, to 
feel ourselves entitled to the benefits it has promised us. If 
it can not yield them, let us know the worst of the case, and 
either get along without having our work done at such vast 
expense, or get better help, for our money. 

The more successful any persons may be, in making it 
appear a plain case that the peculiar structure of our Go- 
vernment, the limitations of the Federal authority, the un- 
impaired sovereignty of the States, the guaranties or the 
compromises of the Constitution, the implied understanding 
of the contracting parties, or any thing else, has put it out of 
the power of the National Government to " establish justice," 
"secure the blessings of liberty" (including of course, the 
suppression of injustice, and of tyranny,) the more successful 
of course, they will be, in proving that the experiment of 
liberty, under our present Constitution is a failure, that its 
place must be supplied by a better, or that civil and religious 
liberty must be relinquished. Such a construction of the 
Constitution loads it with a mill stone fhat must sink it — and 
sink the American People with it, unless they speedily cut 
themselves loose from it. 

To say as some do, that the National Government, in its or- 
ganic structure, is neutral on the question of liberty or slave- 
ry, is directly to contradict its express professions. It is more- 
over a statement of that which is impossible in the nature of 
things. But were the statement never so correct, such a 
fact would decide the question that the Constitution and the 
National Government are worthless, unable to fulfill their 
high promises, or do otherwise than disappoint the expec- 
tations based upon them. 

To represent, as do others, that the Constitution is partly 
in favor of liberty, and partly in favor of slavery, is to re- 
present that it is a house divided against itself which can not 
stand. To say that it is in favor of general liberty and par- 
tial bondage, is to say that it is in favor of a known impossi- 



AMERICAN CONSTITUTIONAL LAW. 11 

bility, that can never be attained. To say that it can secure 
general liberty, and at the same time guaranty local slavery, 
or even compromise or permit its existence, is to affirm the 
greatest of moral absurdities, to deny self-evident truths, to 
falsify human history, to libel the unity of human nature, to 
profess a disbelief of the first axioms of political science — 
the connection between moral cause and effect : — It is to in- 
sult the common sense and moral perceptions of an intelli- 
gent and free People. 

Testimony of American Statesmen. 
In unison with these statements, and with the implication 
that the power of the National Government, (if it has any) to 
"secure the blessings of liberty" is, of necessity, the power 
to abolish slavery, we cite a few extracts from the writings 
of eminent American statesmen. 

Thomas Jefferson. — "And can the liberties of a nation be thought 
secure when we have removed their only firm basis, a conviction in the 
minds of the people that these liberties are the gift of God ? That they are 
not to be violated, but with his wrathl Indeed, I tremble for my country 
when I reflect that 'God is just, that his justice can not sleep forever.' " 

" When the measure of their tears shall be full — when their tears shall have 
involved heaven itself in darkness — doubtless a God of justice will awaken 
to their distress, and by ditYusing a light and liberality among their oppres- 
sors, or, at length, by his exterminating thunder, manifest his attention to 
the things of this world, and that they are not left to the guidance of a 
blind fatality." — Notes on Virginia. 

In the same connection, Mr. Jefferson describes the 
whole commerce between master and slave to be " the most 
unremitting despotism on the one part and degrading sub- 
missions on the other" — and affirms that the child of a slave- 
holding parent — "nursed, educated, and daily exercised in ty- 
ranny, can not but be stamped by it with odious peculiari- 
ties." — Can these " educated tyrants " understand and guard 
civil liberty ? Can they be the rulers of a free People ? 

William Pinck.vey. — "For my own part, I have no hope that the stream 
of general liberty will flow forever, unpolluted, through the mire of partial 
bondage, or that those who have been habituated to lord it over others, will 
not, in time, become base enough to let others lord it over them. If they re- 
sist, it will be the struggle of pride and selfishness, not of principle." — 
Speech in the Maryland House of Delegates, 1789. 

John Jay. — "Till America comes into this measure [the abolition of 
slavery] her prayers to Heaven" (i. e. for liberty) "will be impious. This 
is a strong expression, but it is just." — "I believe God governs the world, 
and 1 believe it to be a maxim in his, as in our court, that he who asks for 
justice must do it." — Letter from Spain, 1780. 

The doctrine of Jefferson, of Jay, and of Pinckney, is ev- 
idently this : — Liberty can not be secure in a country where 
there is slavery : — they are opposites and can not harmonize. 



12 AMERICAN CONSTITUTIONAL LAW. 

One or the other must give place to its antagonist. God 
will not give liberty to a people who permit slavery. 

If it be said, of any government, that it can not abolish slave- 
ry, in the country over which it is established, the meaning 
of the statement, if it have any intelligible meaning, must 
be, that such government can not " secure the blessings of 
liberty" to the country over which it is established. If the 
abolition of slavery be left wholly to " moral suasion," then 
the preservation of liberty is left wholly to moral suasion, and 
the functions of civil government cease. No arrangements, 
influences, or machinery of any kind, can do more to diffuse 
light, than they can to dispel darkness, to secure warmth, 
than to prevent cold, to " secure liberty," than to abolish 
slavery. Can any truisms be more self-evident than these 1 

If the whole question of slavery is left, exclusively, to the 
State Governments, then the whole question oflibertyis left 
exclusively to the State Governments, and the National Gov- 
ernment becomes a mere nose of wax — the fifth wheel to 
the coach, a nullity, by which no man can be bound. 

Further testimony might be cited, from prominent states- 
men and literary gentlemen, by no means obnoxious to the 
charge of prejudice against slavery, or under zeal for its 
abolition. Speeches in Congress, and in State Conventions, 
Governors' Messages, Resolutions of State Legislatures, &c, 
&c, abound in varied expressions and implications of the 
sentiment that the continuance of slavery involves its virtual 
extension, in some form, over the mass of the laboring popula- 
tion of the country at large. In the same connection with 
arguments for the perpetuity of slavery, and demands for 
the suppression of efforts for its overthrow, it has been urged, 
from these high sources, that "those who earn their daily 
bread by the sweat of their brows can never enter into po- 
litical affairs,"* that "the relation between the capitalist 
and the laborer, in the South is kinder and more productive 
of genuine attachment, than exists between the same classes, 
any where else on the globe," f that "gentlemen" (Repre- 
sentatives in Congress) "from the North, must not start at 
this truth," that "one class" of citizens must " practically and 
substantially own another class, in some shape or form" J 
— that while the non-slaveholding States "it is hoped" will 
be prompt to suppress "Anti-Slavery Societies" — "the sober 
and considerate portion of the citizens of the non-slavehold- 

* Benjamin Watkins Leigh, Speech in Virginia Convention for amending the 
Constitution, 1829. — t Prof. Dew, of William and Mary's College, Va. — % Hon. 
Mr. Pickens, Speech in Congress, Jan. 1836. 



AMERICAN CONSTITUTIONAL LAW. 13 

ing States will reflect whether the form in which slavery exists 
in the South, is not one modification of the universal condi- 
tion of laborers," who "with few exceptions,'' have as little 
"volition or agency, in the distribution of wealth" as the 
slaves of the South — that the system of labor among freemen, 
is "not less oppressive" than that among slaves* — that 
" the South has less trouble with their slaves, than the North 
has with her free laborers"! — that where menial services 
"are performed, by members of the political community, a 
dangerous element is introduced into the body politic" — that 
the slaves if emancipated "bleached or unbleached" — and 
admitted to " an equal participation of our political privi- 
leges" would exhibit "a revolting spectacle" — that "slavery 
supercedes the necessity of an order of nobility" — and is 
"the corner stone of our republican edifice" — that "it will 
be fortunate for the non-slaveholding States, if they are not, 
in less than a quarter of a century, driven to the adoption of a 
similar institution, or take refuge from robbery and anarchy, 
under a military despotism,"! — that the abolition of slavery, 
"gradual or immediate" is rendered impossible by "the abso- 
lute want of poicer on the part of the General Government" 
and by "the immense amount of capital which is invested in 
slave property" — that the "dogma" is "visionary — which 
holds that negro slaves can not be the subject of property" 
— that "that is property which the law declares to be proper- 
ty" — that "two hundred years have sanctioned and sancti- 
fied negro slaves to be property" — that "the moment the 
incontestible fact is admitted that negro slaves are property, 
the law of moveable property attaches itself to them, and 
secures the right of carrying them from one State to another, 
where they are recognized as property" — that "the conse- 
quences of abolishing slavery, were the measure possible, 
would be such that " abolitionists themselves would shrink 
back in dismay and horror" from them — that "in the progress 
of time, some one hundred and, fifty or two hundred years hence, 
but few vestiges of the BLACK race will remain, among OUR 
posterity "|| so that the interminable slavery, so long "sanc- 
tioned and sanctified" — so "incontestibly" identified with 
the right of "moveable property," thus securing perpetuity 
to the domestic slave trade, and with the whole North, (under 
the law of '93) as its hunting ground, without jury trial, — a 
slavery and a slave-trade which the General Government has 

* Hon. John C. Calhoun's Mail Report, U. S. Senate, Feb. 1836, and accepted by 
that body. — tMr. Hammond, of South Carolina, Speech in Congress. — J Message of 
Gov. McDuffie to the Legislature of South Carolina, and approved and acted upon by 
that body.— H Speech of Hon. Henry Clay, in the U. S. Senate, Feb. 7, 1839. 



14 AMERICAN CONSTITUTIONAL LAW. 

no power to terminate — and which none of the State Legis- 
latures, (by the late decision of the Supreme Court of the 
United States)* has a right to exclude from the field of 
their iurisdiction — is a slavery and a slave-trade to be per- 
petuated "AMONG OUR POSTERITY"— "with but 
FEW VESTIGES of the black race" remaining! 

No Middle Ground. 

Let the assumed premises of Mr. Clay be conceded to him, 
(viz:) the right of property in man, under American Consti- 
tutional Law — the legality of slavery in America, including 
the inter State slave trade, under the Constitution of the 
United States, and the " absolute want of power on the part 
of the General Government" to abolish this American slave- 
ry and slave-trade, and all the rest of his argument, with its 
tremendous conclusion, follows of course, unless a ray of 
hope might reach us from the good will and pleasure of the 
legislatures of the slave States themselves.! 

°Not less logical and demonstrative are the conclusions of 
Gov. McDuffie's Message, paradoxical and extravagant as 
they may seem, unless we start, in the outset of the argu- 
ment, upon the opposite principle, and affirm that American 
Constitutional Law regards "all men" "bleached or unbleach- 
ed" as "created equal, and endowed by their Creator with 
certain inalienable rights— life, liberty and the pursuit of 
happiness." — On any other assumption, it is manifest that 
our Government regards men as unequal : and if this be 
true it is evident that condition and not color, (according to 
both Clay and McDuffie,) must ultimately become the sole 
distinction between the privileged and the servile. 

Every government is based upon some principle— is based 
upon either one or the other of two principles — the principle 
of human equality; or the principle of human 'inequality, of 
dominition and subjection. If the American Government is 
not based upon the principle of human equality, then it is 

* Decision in the case of Prigg. vs. the State of Pennsylvania. 

tit seems not quite certain that a little variation and extension of the same argu- 
ment would not almost equally remove from the legislatures of the slave States them- 
selves the power of abolishing slavery— a position not infrequently held, at the 
South'— The "incontestible" right of "moveable property" so l..ng " sanctioned and 
sanctified" would present very grave claims, in the eyes of states meaydao hold the 
views of Mr. Clay. And then, if the Constitution of the United States, " the supreme 
law of the land"—" guaranties" that same right of property, and may ride, rough shod, 
over the laswlaturefi V the non-slaveholding Stales, and convert the whole North into 
the 'hunting 5 ground of the slaveholder, to make that "guaranty" good, how will it be 
made to appear that the same "guaranty" does not extend over all the Sta.es in the 
Union, and forbid Southern legislatures to do what Northern teplatures may not ? 
Suppose Maryland should pass an act abolishing .lav.-y.-U quid not the same deci- 
sion of the United States Court, that now prevents Pennsylvania from executing its 
act of abolition, proveut Maryland, likewise, from doing the same thing? 



AMERICAN CONSTITUTIONAL LAW. 15 

based upon the principle of human inequality ; and the de- 
gradation of the laboring masses, whom color can not identify, 
becomes, (as McDuffie hath it,) the corner stone of the en- 
tire structure. Those who contend for the " guaranties'* 
and the " compromises of the Constitution" in favor of slave- 
ry, or its toleration, contend (whether they know it or not) 
for the pith and essence of the very doctrine, so offensive 
to many, when stated in bold and forcible language of the 
Governor and Legislature of South Carolina. 

Illustrative Politics of the Country — State Action. 

The meaning of the question before us, is thus definitely 
fixed. On its magnitude, the reader may reflect at his leis- 
ure. On that topic we can not enlarge. Suffice it to sug- 
gest, that both the meaning and the magnitude of the ques- 
tion have their amplest illustrations in the past and passing 
political history of the country at large. 

The legislative action of the slaveholding States looks 
distinctly and marches steadily to the suppression of general 
liberty, both within their own boundaries, and throughout 
the States of the Union, 

In direct violation of their own State Constitutions, free- 
dom of speech and of the press are proscribed, and in espe- 
cial reference to all attempted promulgation of the doctrine 
of human rights ! 

In Louisiana — " If any person shall use any language, from the lar, 
bench, stage, or pulpit, or any other place" [including halls of legislation] 
" or hold anv conversation having a tendency to promote discontent among 
FREE colored people, or insubordination among slaves, he maybe imprisoned 
at hard labor, not less than three, nor more than twenty^one years, or he may 
suffer DEATH at the discretion of the Court." 

Similar legislation obtains in Mississippi, North Carolina, 
Georgia, Virginia, &c. And these laws are not a dead let- 
ter. A member of Congress from Tennessee,* in a letter 
to a Northern Editor, requested him to send him no papers 
of a certain description, (and consisting of a Review of a 
Report of Mr. Calhoun, in the United States Senate,) after 
he should have returned home to his constituents, because 
his receiving it through the mails, and reading it, at his 
family fire-side, would be a penitentiary offense. 

Legislatures and Governors of slaveholding States have 
offered large rewards for the abduction of free citizens of 
the non-slaveholding States, and carrying them to the South, 
to be tried and punished, there, for advocating human rights, 
in their oxen States, and no legislature of a non-slaveholding 

* Mr. Hunter. 



16 AMERICAN CONSTITUTIONAL LAW. 

State, has, in any way, noticed the insult ! — Demands have 
been made on the Governors of non-slaveholding States, for 
the delivery of such offenders, and also on their legislatures, 
for penal enactments against free speech at home. In di- 
rect violation of the Constitution of the United States, free 
citizens of other States, sojourning in the slave States, are 
liable, if colored, to be seized, imprisoned, and sold into 
slavery — or (whether white or colored) if maintaining the 
" self-evident truths" of the Declaration of Independence, 
to be punished with death. 

Action of the Federal Government. 

The history of the action of the Federal Government, 
under all our successive Presidents, is strikingly illustrative 
of our position, that the Constitution must either be con- 
strued against 'slavery, or in its favor — against slavery or 
against general freedom. 

To those who differ from me on this great question, I 
freely yield all the benefits of a concession of the fact that 
hitherto, the Constitution has been construed, in opposition 
to the views I maintain : — has been construed, in favor of 
the " compromise" and the " guaranty" of domestic slavery 
— has been thus construed by the Legislative, Executive, 
and Judicial authorities of the nation. But aloncr with this 
concession, I shall insist that the hitherto reigning construc- 
tion, as exemplified in the steady action of the Federal Gov- 
ernment, in all its departments, is a construction that makes 
the security of slavery, and not the security of liberty (the 
profession of the Preamble) the grand and paramount object 
of the National Government — is a construction that has led 
all the rival statesmen, administrations, and parties who have 
held it, to pursue steadily, amid all their otherwise conflict- 
ing measures and fluctuating policy, the aggrandizement of 
slavery at the expense of liberty ; a construction that has 
led the Legislature, the Executive, and the Judiciary, to do 
the bidding of the slave power, at whatever expense, or 
hazard, to the interests, the reputation, or the liberties of 
the People. 

For the facts involved in this declaration, it were sufficient 
to cite the reader to — " A View of the Action of the Federal 
Government, in behalf of Slavery, by William Jay," and to 
those new developments of the same action, which, every 
year, and almost every month, are opening before our eyes. 
For a philosophical solution of those phenomena, it is enough 
to bear in mind the construction of the Federal Constitution 



AMERICAN CONSTITUTIONAL LAW. 17 

that looks in the very same direction, and to consider that 
those who think the Constitution to be in favor of slavery, 
will be very likely to administer it in favor of slavery, what- 
ever may be said against the justice or the policy or their 
measures. If the common construction be the correct one, 
we have no remedy for the policy of the last half century, 
but a different Constitution, or an adminsitration that will 
disregard the provisions of the existing one ; a consideration 
to which our attention has not unfrequently been called by 
those who object to the ballot box as a means of removing 
slavery. 

Admitting the common construction to be correct, submis- 
sion or revolution are the only alternatives left to us ; and 
both in turn are the probable, the almost inevitable lot of 
this People. The total loss of our liberties will come first, 
and the bloody recovery of them afterwards. Our destiny 
is before us, arid we must float on, till it is fulfilled. Be it 
so, that we live under a National Government, at war with 
our dearest rights, a Government that taxes us for the acqui- 
sition of new territory, whereon to plant new batteries 
against our liberties — that moulds our naturalization laws in 
the manner best adapted to enslave native freemen — that 
shapes its ever fluctuating political economy, so as may best, 
for the time being, divert the avails of free labor from the 
laborer to the lordling — that employs the expensive diplo- 
macy of the nation to its own infamy — that pretends to pro- 
hibit the African slave-trade, but winks at its successful 
prosecution— that plots against the liberties of South Amer- 
ica and of Cuba, lest the infection of their liberty should 
enable the North American States to become truly free — 
that with indecent eagerness hastens to take by the hand, 
and hug to its bosom, nay, to incorporate with itself, the 
piratical despotism of Texas, at the cost of a war with Mex- 
ico ; while it refuses, for forty years, at a sacrifice of well 
known public benefits, to recognize the independence of lib- 
erated Hayti — that authorizes slavery, the slave-trade, and 
the public sale of freemen, on the national hearth-stone, the 
home and the habitation of its own " exclusive" jurisdiction 
— that defines the condition of the American slave, by deny- 
ing to him even the Asiatic right of petition, then declares 
that right forfeited by all the believers in inalienable human 
rights, and next to be held by the entire American people, 
only by Presidential permission — that by its law of 1793, 
for the arrest of alleged fugitives from slavery, annuls the 
trial by jury, and (by recent decision of its Supreme Court) 

o 



18 AMERICAN CONSTITUTIONAL LAW. 

suspends the freedom or the chattelhood of its Supreme 
Judges themselves, not upon " due process of law," but 
upon the good pleasure of the slaveholder that may choose 
to claim them, as slaves. Be it so that all this decisive and 
even fatal action against general liberty, is the action of our 
qww National Government in which we have confided, to 
" secure the blessings of liberty*? — what then ? If the founda- 
tion principles of the Federal Government require all this 
to be done, as they undoubtedly do, if •' the Constitution 
guaranties slavery" — or if they 2?er??iit all this to be done, as 
they certainly do, if, by a " compromise" they permit slave- 
ry — then we have either to get rid of such a Federal Gov- 
ernment, or relinquish our liberties. 

The wit of man may be challenged to devise another al- 
ternative. American Constitutional Law is either against 
slavery or in favor of it. Both, at the same time, or neither, 
it can not be. One or the other, it is, and must be. If it 
tolerates partial slavery, it betrays and sacrifices general 
freedom : — for general freedom and partial slavery, can no 
longer^ even dubiously contest the supremacy. At this very 
moment, liberty trembles, and is ready to fall, if she may bo 
said even now to exist. Under the present Constitution, is 
there anv hope for her % We proceed to the discussion of 
THAT QUESTION. 

* 

CHAPTER II. 

" STRICT CONSTRUCTION." 

The Constitution op 17S7-9. Considered on the Principle 
of Strict Construction. 

SECTION I. 

THE CLAIMS OF SLAVERY. 

Modern date of the supposed compromise — Remarkable process of proving 
it — Strict construction defined — " Persons held to service and labor" — Ap- 
portionment of representatives and direct taxes — Migration and importation- 
Suppression of insurrection — Protection against domestic violence — Reserved 
rights of the States. 

THE CLAIM ITS CHRONOLOGY ITS TEXTURE AND ITS TACTICS. 

Those who claim the "compromises" and the "guaranties" 

of the Constitution in support of slavery, do so on the ground 

of the provisions of the Constitution of the United States, 

ormed by a Convention held for that purpose, in 1787, rat- 



AMERICAN CONSTITUTIONAL LAW. 19 

ified by the requisite proportion of the States, in 1787-8, 
and going into operation by the organization of the present 
Federal Government, under it, in 1789. And this claim is 
seldom made out, from the provisions of that instrument itself 
to the satisfaction of the claimants themselves, without lug- 
ging in, what is claimed to be the "implied understanding" 
of the supposed parties to the "compact" — an understanding, 
without which, it is assumed, the assent of the slave States 
to the Constitution, could not have been gained. 

But beyond the Constitution of 1787-9 and the attendant 
circumstances of its formation and adoption, the claimants 
are not accustomed to adventure. "We have never heard 
the old Articles of Confederation cited in proof that any such 
compact, compromise, guaranty, or understanding, lay at the 
bottom of that arrangement, or even existed, at that date, in 
any form. The Declaration of Independence, the principles 
of Common Law, the inherent, matter-of-fact, unwritten 
Constitution, the organic frame work and structure of free 
government, itself, of civil government, of any sort, have 
never, so fax as we know, been attempted to be pressed into 
the service of the " peculiar institution" of the South. Noth- 
ing of this. Its Magna Charta of Runny Meade, its Genesis, 
so far as any national "compact" — "compromise" — "guar- 
anty," or "understanding" are concerned, claims no earlier 
date than 17S7-9. 

It is a matter of some importance to note distinctly, this 
fact, as it shows to how narrow a chronological field, the claim 
in question, is confined. We became an independent nation 
— one nation — " United States," in 1776, but no man claims 
any national compact, compromise, guaranty, or understand- 
ing, in favor of slavery, till 1787-9. 

Another remarkable feature of this claim, is its inability 
to shape itself into any tolerable conformity with even its 
own beau ideal, or model of a seemly or valid claim, by the 
process of a consistent and continued adherence to any re- 
cognized principle of interpretation by which, on all otlitr 
questions, the meaning of this national document, in partic- 
ular, or of any other similar instrument, is supposed to be 
ascertainable. 

The claimants of these "compromises, compacts, guaran- 
ties, and understandings," never think of making out their 
claim by taking the well known rule of strict c<mstruction, 
and adhering to that rule, till the- claim is logically proved. 
Nor, on the other hand, will they venture the experiment of 
taking the rival principle of interpretation according to the 



20 AMERICAN CONSTITUTIONAL LAW. 

scope, design, leading object, or "spirit of the Constitution" 
and making out their claim in harmonious accordance with 
that principle. 

Instead of this, they never fail to present an argument made 
up of a motley patch-work, of which "strict construction" is 
claimed to have furnished some of the shreds, too tattered 
and thin indeed to hang together, or shut out the sun-light, 
without a plentiful lining of supposed intentions, yet carefully 
excluding the grand intention to "secure liberty" from coming 
into the interpretation, lest "that which is put in, to fill it up, 
take from the garment, and the rent be made worse." The 
argument commonly begins by insisting that the minutest 
specifications of the document shall be strictly and literally 
complied with, that not one iota or tittle of the detailed pro- 
visions of the Constitution shall be suffered to fail, though the 
known and openly avowed end and object, the main purpose, 
and spirit of the instrument, which gave it existence, should 
be nullified, should suffer defeat, and be relinquished. But 
in order to make out the needed construction of the specific 
provision itself, in the absence of the appropriate words and 
phrases to express the pretended "compact, compromise, 
and guaranty" — (yes ! — in the presence of words positively 
adverse, in their strict, literal import, to any expression of 
that kind,) resort is instantly had to supposed intentions and 
" understandings" to eke out the construction ! The declared 
intent to "secure liberty" shall have no power to help con- 
strue, to qualify, much less to set aside, a technicality that 
can read, by the literal import, to favor the " peculiar insti- 
tution" of slavery. The dead-letter construction shall be held 
omnipotent, here. But let it be shown that the "words of 
the bond" do not happen, exactly, to specify, to describe, 
much less to name, the very "peculiar" thing claimed to be 
o-uarantied or compromised, behold ! the dead-letter con- 
struction is repudiated, at once, and supposed and conjectural 
intentions to secure slavery start up, in its place, and be- 
came Constitutional Law!* 

A Standing Point, and an Umpire. 

Against this backing and filing, this fluctuating, sliding 
process of constitutional interpretation, we record our pro- 

* When it is remembered that our most popular "expounders of the Constitution" 
have been accustomed to reason in this manner— That Presidents' Messages, Acts of 
Congress and Judicial decisions have been framed upon the fragile basis of such ad- 
roit and nimble gyrations, dignified with the name of expositions and palmed off upon 
a confidin- people for Constitutional Law, we may safely infer that a true exposition 
of the Constitution, wliatever it may be must conflict with the now prevalent one.- 
Mr Cl-iv's Speceh iu the Senate, Pinckney's, Pattern's, and Calhoun's Reports, the Act 
of 17U3, and the late decision of the Supreme Court, furnish instances in abundance 
of these deceptive manoeuvres. 



AMERICAN CONSTITUTIONAL LAW. 21 

test, in the outset. The "peculiar" claim, with all the 
amiabilities and attractives attached to it, shall have its fair 
hearing, in Court. Certainly it shall. But, like all other 
claimants, it must define its position, and retain it, long 
enough to have its merits properly canvassed and adjudicat- 
ed. It may choose the "spirit of the Constitution" as a rule 
of interpretation, or the rule of "strict construction" as it 
judges most prudent. But, having made its own selection, 
it must content itself to remain in the same Court, till the ver- 
dict is rendered. Even more than all this, we shall concede 
to it : for the truth can afford to be liberal. The claim of 
constitutional slavery shall have leave to urge its merits 
upon both the principles of interpretation, " strict construc- 
tion," first, and " spirit of the Constitution" aftcncards, not 
flying from the one to the other in the same plea, but trying 
its cause in both Courts, in succession. If the claim can be 
sustained, on the principle of "strict construction" alone 
let it have the benefit of the verdict. But if it finds itself 
defeated on that ground then let it appeal to the " spirit of 
the Constitution" and see whether it can get the judgment 
reversed. But let it not pack its jury from both Courts, at 
the same trial. Nothing can be fairer than this challenge. 
On this basis we proceed. And as the claimants always 
commence their suit, at the Court of "strict construction" we 
will meet them there, first. Let them not dodge, till "strict 
construction" shall have pronounced judgment. They may 
then, file their appeal, if they shall have occasion. 

"Persons held to Service and Labor," 

"No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor ; but shall be delivered up on claim 
of the party to whom such service or labor may be due." — Constitution, 
Art. IV, Section 2, Clause 3. 

Who, unacquainted with the facts that have taken place, 
with the past and daily passing history of this country, 
would ever have conceived that these words described the 
case of a fugitive slave, and required his delivery to the 
slaveholder 1 No one ! Yet such is the claim set up, un- 
der this clause ! But " strict construction" allows no 
reference to past or passing events, for a key to the meaning 
of the document. It insists that the words of the instrument, 
the literal words, according to their commonly received and 
authorized import, and nothing but the words, shall be allow- 
ed to tell us the meaning of the Constitution. It rules the 
Historian and the News Journalist out of the witness box, 



22 AMERICAN CONSTITUTIONAL LAW. 

and installs the Grammarian and the Lexicographer in their 
stead. To their testimony we will now attend. 

Mr. Grammarian — Please to " parse" for the Court and 
Jury, this third clause of the second section of the fourth 
article of the Constitution of the United States. And tell 
us, by the rules of grammar, who it is, that " shall be deliv- 
ered, up" foe., under this clause. 

Mr. Grammarian parses the sentence, and thus, gravely 
responds — " According to the principles of grammar, as 
taught by Murray, Smith, Kirkham, &c, it appears that — 
" No person held to service or labor in one State, under the 
laws thereof, escaping into another ***** shall be 
delivered up on claim of the party to whom such service or 
labor may be due !"* 

Very satisfactory testimony, for the claimant, to be sure, 
but " strict construction" records the testimony of Mr. Gram- 
marian, nevertheless ! As counsel for the fugitive, I can 
afford to pass it over, in my plea. I have evidence enough 
without it, but on the principles of " strict construction" I 
have a right to use it, if I please. . Why not? — By bringing 
his suit into the Court of " strict construction" the 
claimant insists that the Grammar and the Lexicon, the 
dead-letter of the record-, however subsersive of equity, or of 
the meaning intended by the framers of the instrument, shall 
govern the decision to be made. Why then, may I not, 
take him at his word ? 

We will dismiss the Grammarian, and summon the Lex- 
icographer to the stand. We wish to know the meaning of 
the words employed in this clause. The enslaver claims 
that the word " person" means slave. To test this claim we 
must know the meaning of the word "person" and the 
meaning of the word "slave" and see how they correspond. 
Noah Webster knows the meaning of words. — Mr. Webster 
— what is the meaning of the word " person V Please to 
define it, for the Court and Jury. 

Answer. — "Person. An individual human being, con- 
sisting of body and soul. A man, woman, or child, consid- 
ered as opposed to things, or distinct from them." — Web- 
ster's Dictionary. 

The testimony is noted down by the Court. — Mr. Webster 
retires. — " The peculiar" meaning of the word slave, as un- 
derstood by those who " best understand" the very " pecu- 
liar" thing, must next be ascertained. No non-slaveholding 

*This extraordinary syntax of the clause is noticed by Alvan Stewart, Esq., in his 
able argument, (vide " Liberty Press," January 4, 1844.) 



AMERICAN CONSTITUTIONAL LAW. 23 

Lexicographer (more than a non-slaveholding President) is 
to be trusted, here. A Yankee Dictionary may best define 
the meaning of the word « pers&n*" We must look farther 
South for a full and clear definition of the word " slave" — 
The claimant has a witness in Court Having come to 
claim a slave, he has brought with him the slave code of 
the State from which the slave has " escaped" in order to 
inform the Court, precisely, what it is — "under the laws 
thereof" that is claimed. The Court directs the witness to 
be sworn. He is " a southern man with southern princi- 
ples." In every thing relating to the " peculiar institution" 
he is erudite, authoritative, and " sound to the core." And 
moreover, though a southern man, he is a " icliite man," and 
without a tinge of African blood: — a competent witness of 
course. He must be heard with " peculiar" respect. The 
Sheriff and Constables, will preserve " silence in Court" 
while lie testifies — Hush ! 

" Slaves shall be deemed, sold, taken, reputed, and adjudged in law, to 
be CHATTELS PERSONAL, in the hands of their owners and possessors, 
and their executors, administrators and assigns, to all intents, constructions 
and purposes what soever." — Laic of South Carolina. 2 Drev. Dig. 229 ; 
Prince's Digest, 4-1G, 8?c, 

" Jn case the personal property of a ward, shall consist of specific ARTI- 
CLES, such as slaves, working beasts, animals of any kind, stock , furni- 
ture, plates, books, and so forth, * * * * the Court may at any time, 
pass an order for the sale thereof." — Act of Maryland, 1798, Chap. ci. SpC. 

"Slaves shall always be considered and reputed real estate."— Louisiana^. 
Act of January, 1306. 

"In Kentucky by the law of descents, they are considered real estate," 
but " are liable AS CHATTELS, to be sold "by the master, at his pleasure, 
and may be taken in execution for the payment of his debts." — 2 Lilt, and 
Sni. Digest. 

•' The cardinal principle of slavery, that the slave is NOT to be ranked 
among sentient beings, but among 1HINGS, is an article of property, a 
chattel personal, obtains as undoubted law, in all of these States." — Stroud, 
paze 23. 

" It is plain that the dominion of the master is as unlimited as that which 
is tolerated by the laws of any civilized country, in relation to brute animals, 
to quadrupeds, to use the words of the civil law." — Stroud, page 24. 

" Slaves can make no contract" — " A slave can not even contract matri- 
mony." — Stroud, page til. 

" Two hundred years have sanctified negro slaves, as property" — " That 
is property which the law makes property" — " The moment the incontestible 
fact is admitted that negro slaves are property, the law of moveable proper- 
ty attaches itself to them, and secures the right of carrying them from one 
State to another, where they are recognized as property."— Speech of tlenry 
Clay, in the United States Senate, February 7, 1839. 

This testimony too, if taken down by the Court, and 
*.' strict construction" wipes its spectacles for the compar- 
ison. How reads the record % " We have it in evidence 
that the word 'person' -denotes a human being, a man, wo- 



24 AMERICAN CONSTITUTIONAL LAW. 

man, oi' child, considered as opposed to THINGS, and dis- 
tinct from them. We have it in evidence, likewise, that the 
word ' slave' means a chattel personal, A THING, and not a 
sentient being. The testimony then, is, that a 'person'' can 
not be a tiling ; and that a ' slave' is a thing. The word 
' person' in the Constitution, therefore, can not mean a 
slave. The claimant, by proving the being claimed, under 
this clause to be a slave has proved that he is not & person, 
and therefore can not be recovered under this clause." So 
reasons " strict construction" and prepares to render 
judgment, without further waste of time. By joint request 
of both the parties, the Court consents, however, to a con- 
sideration of other matters, before pronouncing a decision. 

Waiving the syntactical suicide of the clause under re- 
view, and passing from the definition of the words " person" 
and " slave," we take up the clause again, and read it over 
carefully, to discover, if we can, what impression it conveys, 
as a whole, of the condition of the being or " person" it de- 
scribes. And the result is, first, that the condition of a slave 
is not therein described ; second, that a certain condition, 
familiarly known among us, is described; and third, that 
the condition thus described, is the condition of one who, 
by the description, can not possibly be, or coidd not have been 
a slave. • 

First : — The condition of the slave is not described at all, 
in the clause. The appropriate English word, slave, uni- 
versally used, especially in this country, to express that 
condition, is carefully excluded t How is this, if the design 
was to specify and to describe that " peculiar" condition 1 
The phrase " held to service or labor" does not describe the 
legal condition of the slave. He is held as "property," 
" goods and chattels personal ;" but the law knows nothing, 
and has nothing to say or to prescribe, concerning his ser- 
vice or uselessness, concerning his labor or his idleness. 
The highest prized slaves, those commanding incomparably 
the largest sums of money in the market, are " held," 
bought, and sold, for far other purposes than labor, purposes 
altogether incompatible with it ! "Escaping" is an awkward 
word, at best, to be applied to property, to a chattel, to a 
thing. Self locomotive property may be described as 
"straying," but not as " escaping" from its owner. "Dis- 
charged from service or labor" is a phrase never used to 
describe either the manumission of a slave, or his release 
from labor. The phrase supposes a legal obligation to labor 
which can not rest on the slave. The law requires no labor 



AMERICAN CONSTITUTIONAL LAW. 25 

of him, whatever his master may do. There are sometimes 
laws ostensibly limiting the amount of labor to be imposed 
upon slaves, as there are laws to prohibit the abusive treat- 
ment of cattle, but such laws never speak of their "discharge" 
from any portion of their labor. If such laws should go so 
far as to forbid, in certain specific cases, the putting of any 
labor upon aged, decrepit, or diseased slaves, the prohibition 
would be no emancipation, nor would it be called a " dis- 
charge from labor." " On claim of the party to whom such 
service or labor may be due" — Nothing can be legally due 
from a slave to his master : from " goods and chattels per- 
sonal" to their " owners and possessors." " The slave can 
make no contract" and hence, nothing can be " due" from 
him. Master and slave can not be creditor and debtor. — 
The owner has no legal " claim" upon his beast for labor. 
He can not " sue him at the law" for default of " service," 
nor can the law enforce the payment, or " discharge" from 
it. All such language is inapplicable to the condition of the 
slave. If the slave master has proved the estray " chattel" 
to be his chattel, his slave, then he has proved, not merely 
that he is no "person" but that nothing can be "due" from 
him, and that the clause of the Constitution now under re- 
view, does not apply to the case. If this clause of the Con- 
stitution " does apply to slaves, it emancipates them, for it 
proceeds upon the basis of self 'ownership in the person held 
to labor, and makes its provisions applicable only to a debt- 
or in law, who, in order to owe the creditor, must ow7i him- 
self."* And this appears from a consideration of the other 
points proposed. 

Second: — The clause does describe a condition, familiarly 
known among us : — the condition of "persons," as "distinct 
from things" — persons who are "held to service or labor 
under the laws of the State" wherein they reside — persons 
" from whom such service or labor may be due" because 
they may have contracted to perform it, or because due to 
parents or guardians; persons whom the laws, on proper 
grounds, may "discharge" from the labor that may be wrong- 
fully demanded of them, persons who may wish to "escape" 
from the obligations believed to be resting on them, persons 
whom the authorities of one State may appropriately "deliv- 
er up on the claim of the party (in another State) to whom 

* Tract No. 5, New England Anti-Slavery Trad Association, on "Persons held to 
Service, Fugitive Slaves," &c, by Theodore D. Weld. If the reader wishes to see 
the argument amplified, which is here briefly condensed, chiefly from that work, he 
should read it entire. Ou the "strict construction" principle, its positions will not be 
easily overturned. 



26 



AMERICAN CONSTITUTIONAL LAW. 



such service or labor may be due" Such is the condition 
of the apprentice, the minor, the contractor of job work, the 
debtor, who is held to service or labor by the terms of his 
own voluntary agreement.* 

Third : — The condition so accurately and minutely de- 
scribed in the clause, is a condition which can not, by any 
possibility, be predicable of the slave, who is held as pro- 
perty, who can make no contract, who can never become a 
creditor, and from whom nothing can be " due." 

Should it be claimed, as perhaps it may be, that in a dis- 
puted or doubtful case, the principle of "strict construction" 
does not preclude a reference to the history of the times, 
the general understanding, &zc, &c, to gather light upon 
the meaning of a legal instrument, the answer is at hand. 
No references of the kind proposed, on the principle of "strict 
construction" (for in that Court we are litigating, now) " can 
avail to set aside the plain terms in which a clause of the 
Constitution is expressed." Aside from the faulty syntax 
of the clause first noticed, no'tcrms could more plainly ex- 
press the condition of the "persons" specified and described; 
a condition incompatible with that of the slave. " Strict 
construction" will not permit the supposition that the Con- 
stitution means a slave, when its framers, whatever their 
intentions might be, took such special care not to say that 
they meant it, biit actually said the contrary. " Strict con- 
struction" maintains that even if " a statute, or a clause of a 
constitution, may, in certain cases, be construed beyond the 
letter," it "must never be construed against the letter." 
" Strict construction" affirms that " a construction repugnant 
to the express words of the law can no£ hold — and further, 
that where the words are unambiguous and explicit, the 
construction must not only not conflict with it, but must be 
based upon it, and still further, that Courts are not at liberty 
to carry out what they may suppose to be the design of the 
law, to put upon its provisions a construction repugnant to 
its words, even though the consequence of not doing it 
should be defeat to the object of the law." "Strict con- 
struction" holds that "with the policy of a clause in the Con- 
stitution, Judges have nothing to do." " Strict construction' ' 

* This view of the subject is moreover confirmed, and additional force is given to 
the idea that the peculiar condition of the slave is not described in the clause, when 
we remember that no allusion is made to Me color commonly supposed to be the badee 
of the slave, and of those that may be claimed as such. This leniark can be neutral- 
ized only by pleading- that the common construction of the clause, embodied in the 
Act of 1793, and in the decision of the Supreme Court, does contemplate the enslave- 
ment of whites! 



AMERICAN CONSTITUTIONAL LAW. 27 

rules that the Court has no authority " to presume the inten- 
tions of the framers, but to collect them from the words, 
taken in their ordinary import ;" and " strict construction" 
cites the authorities that follow. 

" Lord Tanterton, the late distinguished Chief Justice of the Court of 
King's Bench, in a recent judgment, says : — ' Our decision may, perhaps, 
in this case, operate to defeat the object of the statute, but it is better to 
abide by this consequence than to put upon it a construction riot warranted 
by the act, in order to give effect to what we may suppose to be the inten- 
tions of the legislature.' 

"So, in the case of ' Notley vs. Buck,' 8 B. and C. 164, that eminent 
Judge says : — ' The words may probably go beyond the intention, but if they 
do, it rests with the legislature to make an alteration. The duty of the 
Court is only to construe and give effect to the provision.' " 

Imbedded in principles and precedents like these, what 
can " strict construction" do, but decide against the 
claimant of a fugitive slave, under the third clause of the 
second section of the fourth article of the Constitution of 
the United States 1 

If it still be pleaded, in arrest of judgment that " the 
clause is fairly open to two interpretations, and that there- 
fore resort must be had to history, to contemporaneous ex- 
position," &c, &c, the plea is inadmissable, here, because 
it is in effect, a motion to take the cause out of the Court of 
"strict construction" and try it at that other Court to which 
the claimant will be allowed an appeal, if defeated, here. 
But inasmuch as other important questions touching the 
" peculiar institution" and its claims on other portions of 
the Constitution are about to be litigated in this Court, the 
judgment in this particular case will be suspended, for fur- 
ther deliberation. 

Apportionment of Representatives and Direct Taxes. 

"Representatives and direct taxes shall be apportioned among the several 
States which maybe included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three-fifths of all other persons," &c. — U. S. Const. Art. 
I, Sect. 2. Clause 3. 

And who, among the uninitiated, could have divined that 
either a " compromise" or a "guaranty" of slavery, was 
bound up in these words % Nothing is said about slavery or 
slaves. And since nothing is said, how can " strict construc- 
tion" admit the plea that something was intended ? And that 
that something was (what is not mentioned in the Constitu- 
tion) a "guaranty" or a "compromise" in its favor 1 

Allowing one moment for the sake of the argument, that 
the word "persons" did mean "slaves" and that the States 



28 AMERICAN CONSTITUTIONAL LAW. 

holding few or no slaves consented to an arrangement by 
which three-fifths of the slaves were to be counted, in the 
apportionment of representatives and direct taxes. "What 
then? How is the "compromise " or the "guaranty" of 
slavery made out ? "Strict construction" can infer nothing 
of the kind. It can only see a bargain about the payment of 
money, and the right to choose a given number of represent- 
atives — a barter trade, in which the Yankee States intended 
to benefit their pockets at the expense of a portion of their 
political power — and got the worst of the bargain, as other 
Esaus have done, before them. Further than this, "strict 
construction " could not go, granting all the premises 
claimed. 

But "strict construction" will never consent to the 
premises. It will by no means admit, tnat when the Con- 
stitution speaks of "persons" — of human beings, in distinc- 
tion from tilings, it means " goods and chattels personal, 
to all intents, constructions, and purposes whatsoever," — 
of "things" in distinction from "sentient beings." We 
pass to another topic. 

"Migration or Importation." 

" The rrigration or importation of such persons as any of the States now 
existing shall think proper to admit, shall not be prohibited by Congress, pri- 
or to the year one thousand eight hundred and eight, but a tax or duty may 
be imposed on such importation, not exceeding ten dollars for each person.' r 
— U. S. Const. Art. I, Sect. 9, Clause 1. 

What "compromise" or "guaranty" of "the peculiar in- 
stitution" have we, here ] For the sake of the argument, 
we will, in the first place, suppose, that " the migration or 
importation of such persons," &c. means " the migration 
and importation of" slaves. What does "strict con- 
struction" see, in this clause of the Constitution, then 1 — 
It notices, 

1. That it applies only to the States "now existing" that 
is, when the Constitution was formed, adopted or put into 
actual operation. Kentucky, Tennessee, Louisiana, Alaba- 
ma, Mississippi, Arkansas, Missouri, a majority of the present 
slaveholding States, as well as Florida are not included, and 
never were, and never can be, in the provisions offliis clause ; 
and whatever, of "compromise" or of "guaranty" the "pe- 
culiar institution" in the six other slave States may claim, or 
may have claimed, under it, the seven States above mention- 
ed never have had, and never can have, any part or lot in the 
matter. Congress may, at any time, do, in respect to those 
States and to this Territory whatever it might have done, had 



AMERICAN CONSTITUTIONAL LAW. 29 

the clause never have been written. To them, it brings 
neither "guaranty" or "compromise." It notices, 

2. That the year one thousand eight hundred and ei^ht, 
having gone by, thirty-six years ago, whatever of "compro- 
mise" or of "guaranty" the clause may have given to some 
of the original States, for a time, the period of its operation 
has, long since elapsed, and the present generation has no 
more to do with it, than with the edicts of Caesar Augustus .* 
It notices, 

3. That the clause, even when in force, in respect to the 
original States, did not, on the principle of "strict construc- 
tion" restrain Congress from "establishing justice" and "se- 
curing the blessings of liberty" by the general abolition of 
slavery. On that subject, the clause under consideration, had 
nothing to say, and accordingly said nothing. 

So that if it could be true that the word "persons" here 
used, meant slaves, it could not be true, on the principles of 
" strict construction" that the system of slavery derives any 
"guaranty" from it, or its existence "compromised" or per- 
mitted by it. 

But back of all this lies the self-evident truth that "persons" 
are human beings, with "souls" as well as bodies — and that 
consequently, they are not "chattels personal" and "things" 
The dictionaries tell us this. "Strict construction" decides 
according to the meaning of the words — and the word "per- 
sons" can not mean "slaves." "Strict construction" accord- 
ingly reads this clause as applicable to the ingress or egress 
of "human beings with natural rights" — "a man, woman, or 
child, considered as opposed to things or distinct from them." 
These may be English, French, Dutch, Irish, Malay, Hot- 
tentot, Hindoo, or African. But they can not be slaves. 

Before dismissing this topic, it may be worth while to 
notice a remarkable inconsistency of those who hold the 
opposite doctrine. If it be true, as they insist, that the mi- 
gration and importation of slaves is described in this clause, 
and that, prior to the year 1808, Congress had no power to 
prohibit their ingress, by migration or importation, into "any 
of the States," &c, that should "think proper to admit" them 
— then it follows that the famous law of 1793, for the seizure 
and return of fugitive slaves, migrating into States willing 

*If the claimant, by his own construction and his own showing has had his "bond" 
eatisfied, to the very letter — if he has had his cake, and eat it up, a generation ago, for 
what honest object does he come into Court, whining about his "bond" and "guaran- 
ty" and "compromise," now? Was the "compromise'' all on one side ! Is the twen- 
ty years' respite never to run out? Constitutional expositors who urge "compro- 
mises" and "guaranties" after this fashion, must either be very dull of apprehension 
themselves, or presume largely on the stupidity of others. 



30 AMERICAN CONSTITUTIONAL LAW. 

to receive them, was palpably unconstitutional and prema- 
ture.* Not less so, I may add, upon the construction that 
makes "persons" to mean human beings, in distinction from 
things, from chattels, and slaves. 

Suppression of Insurrection. 

" Congress shall have power'' " to provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections and repel invasions." — " 
United States Constitution, Article I, Section 3, Clause 14. 

It is claimed that by this clause, the National Govern- 
ment is bound to assist in quelling an outbreak of refractory 
slaves, whenever they may refuse to work, or whenever 
they may forcibly resist their masters. 

What says a " strict constructionist" of the Constitution, to 
this claim ] 

" Congress shall have power to" do a specific thing. Does 
that mean that Congress shall do that specific thing ] Or 
does it only mean that Congress shall act according to its 
discretion, in the matter 1 

" Congress shall have power" (under this same section) 
" to lay and collect taxes, duties, imposts" — " to borrow 
money on the credit of the United States" — " to establish 
uniform laws on the subject of bankruptcies throughout the 
United States" — " to declare war, grant letters of marque 
and reprisal" — " to raise and support armies" — " to provide 
for, and maintain a navy," &c. &c. &c. Does this language 
mean that Congress shall do all or any of the things speci- 
fied ] Or that it shall do this on demand of any particular 
portion of the country, irrespective of its own best judgment 
of the "justice" of the measure, and the interests of the 
country at large ? To ask questions like these, is to answer 
them. 

" To execute the laws- of the Union." But do " the laws 
of the Union" enforce the labor of slaves, or legalize the 
power of the masters % By what clause of the Constitution 
are such powers conferred 1 

" To suppress insurrections and repel invasions." And 
what is an insurrection % " Strict construction" inquires, at 
every step, into the meaning of the words, (in their ordinary 
import) which the Constitution employs, We must call 
Noah Webster again, to the stand. 

" Insurrection. A rising against civil or political authority ; the open 
and active opposition of a number of persons to the execution of law, in a 

* See address of Alvan Stewart, Esq. And here we have another illustration of the- 
fidelity and acumen with which the Constitution has been expounded, hitherto,. by its 
official guardiaus L 



AMERICAN CONSTITUTIONAL LAW. 31 

City or State. It is equivalent to sedition, except that sedition expresses a 
less extensive rising of citizens. It (lifters from rebellion, f'<»r the tatter ex- 
presses a revolt, or. attempt to overthrow the government, to establish a dif- 
ferent one, or to place the country Under another jurisdiction. Jr differs 
from mutiny, as it respects the civil or political goverrBnent, wh< i 
mutiny is open opposition to law in the army or navy." — Webster' s Dic- 
tionary. 

An " Insurgent:'' 1 — Is " A PERSON who rises in opposition to civil or 
political authority ; one who openly and actively resists the execution of 
lairs. An insurgent differs from a rebel. The insurgent opposes the < xe- 
cution of a particular law or laws; the rebel attempts to overthrow or 
change, the government, or he revolts, and attempts to place the country 
under another jurisdiction. All rebels are insurgents, hut all insurgents are 
not rebels." — lb. 

Admitting, for the sake of the argument (what is not true) 
that a slave can be a "person" in the eye of the law, it is 
evident that the refusal of a slave to obey his overseer or 
owner — and that his forcible resistence to their persons or 
to their authority can not amount to an insurrection — does 
not constitute him an insurgent. The authority of the mas- 
ter over the slave is neither "civil" nor "political authority." 
The slaveholder is not, by virtue of his slaveholding, a legis- 
lator or a magistrate. Neither the Constitution of the United 
States nor that of any one of the slave States, directly con- 
fers legislative or executive power upon the individual slave- 
holder, as such. When a slave refuses to. obey a command 
of his master, he does not refuse to obey a laic, either of the 
State or the Nation. When he resists the enforcement of 
his master's demands, such resistance is not " opposition to 
the execution of laic" If a thousand or a million of slaves 
should do the same thing, at the same time, it would not 
alter the nature of the act. In doing it, they would resist 
only their masters. They would not resist " the execution 
of law" — they would not rise against " civil or political au- 
thority." And consequently they would be guilty of no 
insurrection. The masters, in such a case, might bring their 
several actions against the slaves at Justice's Courts, for 
" assault and battery," if the slaves could be accounted in 
law, "persons.'* But since this is not the case, the thing is 
never done.* 

It is often claimed, on behalf of the " domestic institution 
of slavery," that it is part and parcel of the family relation, 
or at any rate, so nearly resembles it, that it may be judged 

*I do not forget that the enactments of the slare States provide for the punishment 
of the slaves a.- crimi.nals. But I contend that those enactments are in flat contradic- 
tion of the code that holds them as goods and chattels personal If the oni is valid 
law, the otlur can udtbe, and; any impartial Court would so decide. The momenta 
slave is lignlbj indicted for crime, that moment he is legally declared a person, and 
not a chattel ; in other words,, he is legally emancipated,. 



32 AMERICAN CONSTITUTIONAL LAW. 

of by the same rules. The slave is compared with the hired 
servant, the apprentice, the minor child, and sometimes, 
even with the wife. And the authority of the slaveholder 
and overseer is called " paternal" and represented as similar 
to the authority of the "boss" workman, the employer, the 
master of the apprentice, the guardian, the parent, the hus- 
band. 

Let this clause of the Constitution be read in the light of 
such representations. Here are hired servants that decline 
to do the bidding of their employers. Here are bound ap- 
prentices that will neither make shoes, nor tan leather, nor 
ply the needle, nor wield the broad-axe, nor swing the 
sledge-hammer. Here are minor children that throw down 
their hoes in the corn field, or their scythes in the meadow. 
Here are house-wives that demur against the drudgeries of 
*' domestic" cookery, that will neither bake or boil pot, will 
neither churn, wash, nor iron ; at least without the stipulated 
compensation of new gowns, caps, and ribbons, beyond the 
convenience or good pleasure of their husbands. High 
words ensue, and words ripen into blows. The contagion 
spreads from family to family, from village to Tillage, from 
State to State — confusion reigns, industry is paralized, 
broom-sticks are brandished, and broken ribs and bloody 
noses complete the scene. Now for the remedy. " Con- 
gress shall have power, to provide for calling forth the mili- 
tia to execute the laius of the Union, supj)ress insurrections, and 
repel invasions /" 

If irony be detected in the picture, it is only because 
there was absurdity in the thing that presented itself for the 
portrait. 

On the principle of " strict construction" this clause of 
the Constitution, so far from making it obligatory on Con- 
gress to employ the military power of the Nation to enforce 
the labor of slaves, or to interfere in the " domestic" quar- 
rels of servants and their masters by " calling forth the mili- 
tia," does not even invest Congress with the 'power to do any 
such thins:. 

Those who hold the opposite doctrine, are nevertheless 
wont to proclaim loudly, the very limited authority of the 
Federal Government, its incompetency to intermeddle with 
local concerns ; and they magnify greatly, the untouched 
independency, and reserved powers of the separate States. 
All this is urged, in special reference to the existence of 
slavery. But in this very " peculiar domestic" concern of 
keeping the slaves quiet, their theory is reversed ! The 



AMERICAN CONSTITUTIONAL LAW. 33 

Federal power is every thing, and State power is unable to 
punish murder, nay, even to restrain assault and battery, 
without the national arm. A kitchen quarrel between maid 
and mistress, an altercation between a slave-driver and his 
gang, a street brawl, blows between a night-walker and a 
patrol, a chase after a runaway chambermaid or ostler, 
attendance on a religious meeting after nine o'clock or after 
sunset, or by Sabbath sunlight, without a written pass; the 
preaching of a sable colored laborer to his fellows, the keep- 
ing of a school to teach the alphabet, the unseasonable visit 
of a lover to his mistress, of a husband to a wife, or of a 
mother to her offspring ; the refusal to labor without wages, 
or to do the unlawful bidding of the debauched or the drunk- 
ard — all these, or either one of them, are gravely held, by 
constitutional lawyers, to be fit occasions for calling out the 
national militia — all these, or either one of them, if persisted 
in, and by a sufficient number of persons to embarrass or 
endanger the slaveholders are held to be equivalent to an 
insurrection ! 

Let it be noted that the power of Congress to suppress 
"insurrection" carries along with it, the power of Con- 
gress to define " insurrection" — to say in what an insurrec- 
tion consists, and in what it does not consist. And " strict 
construction" insists that Congress shall frame this definition 
in accordance with the "ordinary import of the words" — in 
accordance with the testimony of the accredited lexicogra- 
phers of the language. And where shall we find better 
authority than that of Noah Webster ? Or a respectable 
definition at variance with the one quoted from him 1 

And when Congress shall have defined the word " insure 
rectiori" in direct reference to proposed action in the case of 
refractory slaves, it will have dipped pretty deeply into the 
" delicate question" of the legality of American Slavery ! 

Before dismissing entirely the definition of the word 
" insurrection'' employed in the Constitution, it may be well 
to see how nearly we can approximate towards the discov- 
ery of a definition furnished by the Constitution itself. The 
Constitution is particular, in its definition of the word "trea- 
son" and Noah Webster may help us to compare the words 
" treason" and " insurrection." 

" Treason against the United States shall consist only in U 
against them, or in adhering to their enemies, giving them aid and comfort. 
><<> person shall be convicted of treason, unless on the testimony of iwo Wit- 
nesses to the same overt act, of on cotrfession in open Court." — United 
States Constitution, Article III, Sec' ion 3, Claude 1. 

3 



&4 AMERICAN CONSTITUTIONAL LAW. 

" Treason, is the highest crime, of a civil nature, of which a man can be 
guilty. In general, it is the offense of attempting to overthrow the j^overn- 
Bient of the State to which the offender owes allegiance, or, of betraying the 
State into the hands of a foreign power." — - Webster's Dictionary. 

If there he a. difference between the Dictionary and the 
Constitution, it lies in this ; that the Constitution limits the 
" general" meaning '>f the Dictionary, and restricts it to the 
particular overt acts specified— levying war — adhering to 
enemies : — whereas the more " general" definition might 
include other acts of the same nature and design. By the 
same rule, a constitutional definition of " insurrection"— if a 
definition had been furnished, would have restricted rather 
than enlarged,* the definition of the Dictionary, confining 
V insurrection" to the specific act of bearing arms against 
the civil or political authority, and the execution of the laws. 

The dilference pointed out by Webster between insurrec- 
tion and rebellion, is substantially the same as is noticed in 
comparing his definitions of "insurrection" and of "treason." 
Insurrection is the less comprehensive act. It may consist 
in an armed resistance against the execution of a particular 
law of the State, without directly attempting the more com- 
prehensive enterprise of overturning the St-at.e itself, and 
establishing another government over it. 

The nearest literal adhesion to the words of the Constitu- 
tion that the case admits of, conducts us, therefore, to the 
same definition (substantially) of the word insurrection, that 
is furnished by Webster, only more carefully restricted, less, 
liable to be extended to a variety of indefinite acts. 

In no view we can take,, will " strict construction" permit 
us to apply the clause of the- Constitution now under review, 
to the case of refractory slaves :-^ not even if slaves were to, 
be considered and dealt with, as " 2 msons " 

But as this is not the cas© — as slaves are " deemed, sold, 
taken, reputed and adjudged, in law, to be CHATTELS 
PERSONAL" — "to all intents, constrictions and purposes 
whatsoever" — it is manifestly beyond the power of irony or 
satire to overpaint the picture of absurdity and ridiculous- 
ness, wrapped up in the claim, under this clause, of a con- 
stitutional pledge, guaranty, or even. authoriJjj or rear rant,.. 
for the employment of the national militia to keep the slaves, 
in subjection, to enforce their kilor, or to protect their owners 
against them. 

, " That is property which the law makes, property." And 
"Congress shall have power" to " suppress insurrections?.' oF 
" property" against its owners ! — -or " against the execution 



A.u^.^.hV CONSTITUTIONAL LAW. oG 

of law!" "Specific articles, such as slaves, working beasts, 
animals of any kind" decline performing the tasks their 
owners desire of them. They frisk out of their traces, run 
back, refuse to draw, throw up their heels ; they crush the 
feet of their Balaam-eyed riders against a wall, they crouch, 
lie down, and refuse to rise again. And behold ! — " Con- 
gress shall have power to" provide for the emergency by 
" calling forth the militia, to execute the laws of the I r nion /" 
" Specific articles" of property, in conspiracy with " Real 
Estate," aspire to become owners of " specific articles" and 
holders of" real estate" themselves. "Goods and Chattels" 
demur against being held as goods and chattels any longer, 
desirous of possessing " goods and chattels" in their turn. 
Constitutional Laiv, putting on its wig, and mounting its wool- 
sack, decides it to be a manifest case of "insurrection" 
against the State! The contest between "Goods and Chat- 
tels" and their " owners and, possessors" waxes warm and 
comes to blows. " Goods and Chattels" are likely to be- 
come an over-match for their owners. " Working animals" 
meditate deeds of blood and slaughter among their possess- 
ors. Horns and heels are already bringing muskets and 
cutlasses into requisition. " Congress shall have power" to 
protect the owners against their property — to " suppress 
insurrections and repel invasions /" To wage a war of exa- 
mination against " Goods and Chattels" and " Real Jstate" 
for the benefit of their " owners and possessors, and their 
heirs, executors, administrators and assigns !" Such is a 
specimen of the jargon resulting from the construction of 
the Constitution against which we contend. 

Protection against Domestic Violence. 

But another section of the Constitution, or rather a muti- 
lated fragment of it, is quoted to. the same effect. The en- 
tire section reads thus : 

"The United States shall guaranty to every Stale in the Union, a republi- 
can form of government, and shall protect each of ihem from invasion ; and 
on application of the legislature, or of the executive, (when the legislature 
can not be convened,) against domestic violence.** 

The first part of this section will receive particular atten- 
tion, in another place. The provision looks in quite anoth- 
er direction than the federal guaranty of slavery ; a circum- 
stance sufficiently obvious to every one ; and accordingly 
we never find it quoted in its proper connection, or quoted 
at all, by those who plead the constitutional compromises 
and guaranties we are now considering, 



36 AMERICAN CONSTITUTIONAL LAW. 

The United States shall, in certain contingencies specified, 
protect each of the States from invasion, and from domestic 
violence. What is the "domestic violence" intended ] The 
connection leads us to conceive of that violence as naturally 
resulting from attempts to subvert " a republican form of 
government" and establish other usages in their stead. At 
all events, it is evident that the section must not be con- 
strued into a right or obligation, on the part of the United 
States, to lend its aid and authority to the svpjiort of anti- 
republican laws and usages in the States. For that would 
be to quote the provision in opposition to its own express 
terms. And consequently the provision can not be construed 
as authorizing or requiring the United States to assist in 
supporting slavery in any of the States, for slavery is known 
to be the most anti-republican thing that can be conceived. 
Slavery and republicanism are opposites, and the common 
use of language places the terms in opposition to each other. 
And " strict construction" never permits a departure from 
the plain meaning of the words. 

This view is further confirmed by a consideration of the 
ordinary use and proper meaning of the terms " domestic 
violence." 

" Domestic Belonging to the house or home; pertaining to one's place 
of residence and to the family. * * * * * * Pertaining to a nation, 
considered as a family, or to one's own country ; intestine, and not foreign." 
Webster's Dictionary. 

" Violence. 1. Physical force, strength of action or motion. 2. Moral 
force; vehemence. 3. Outrage, unjust force, crimes of all kinds. 4. Ea- 
gerness, vehemence. 5. Injury, infringement. 6. Injury, hurt. 7. Rav- 
ishment, rape. To do violence to, or on; to attack, to murder. To do 
violence to. to outrage, to force, to injure." — lb. 

" Domestic violence" therefore, in the bad senses of the 
word violence, (which the Constitution evidently intended,) 
expresses nothing like the refusal of a slave to labor, or his 
demanding, asserting or even defending his natural and ina- 
lienable rights — his resisting the outrages and aggressions 
of others, upon those rights. On the other hand, the defini- 
tion of " domestic violence" does very accurately describe 
the forcible chattel enslavement of men, women, and chil- 
dren ; the treatment that slaves inevitably receive, under 
the slave system, the outrages, injuries, and "crimes, notori- 
ously and constantly perpetrated upon them ; and especially 
and emphatically does it describe the systematic scourging, 
confinement, fettering, hunting with blood-hounds, shooting 
down with rifles by individuals, and by volunteer bands of 
unauthorized and armed men. of fugitive or refractory labor- 



AMERICAN CONSTITUTIONAL LAW. 37 

ers — thus filling the " house, the home, the place of resi- 
dence" — " the nation considered as a family" — " one's own 
country" with the worst species of " violence" — with " intes- 
tine" disorder and commotion. The graphic descriptions 
of Mr. Jefferson correspond with these observations. He 
speaks of slavery as an act of violence when he affirms that 
the liberties of the enslaved " are not to be VIOLATED, 
but with the Divine wrath" — and he characterizes this vio- 
lence as a " DOMESTIC" violence, in both the senses we 
have quoted from Webster. " The parent storms, the 
child looks on, catches the lineaments of wrath, puts in the 
same airs, in the circle of smaller slaves, give6 loose to 1 lie 
worst of passions, and thus nursed, educated, and daily train- 
ed in tyranny, can not but be stamped by it, with odious 
peculiarities." Thus the " house, the home, the place of 
residence" is filled with " domestic violence." And not only 
s0 — "the nation considered as a family," our ; ' own country" 
according to Mr. Jefferson, is filled with the same domestic 
violence. " With what execration should the statesman be 
loaded, wlao,, permitting one half the citizens to trample on 
the rights of the other, transforms those into despots, and 
these into enemies, destroys the morals of the one part, and 
the amor patrce of the other." 

No other " domestic ridlenvc" in this country, can bear a 
comparison with slavery. " Strict construction" will never 
consent that the Constitution shall be understood to sanction 
the national enforcement of " DOMESTIC SLAVERY" 
under plea of protection, against " DOMESTIC VIO- 
LENCE !" 

Further than this, we insist not, at present. In another 
place we shall inquire whether the Constitution does not 
require the suppression, by the United States, of this "do- 
mestic violence." 

IiKSERVED RIGHTS OF THE STATES. 

The right of the States to tolerate and sustain slavery, is 
not (infrequently grounded on the reserved rights of the 
States, in conformity with the Constitution of the United 
States ; viz : 

"The powers nor delegated to the United States by the Constitution, nor 
prohibited by it to th • Stares, are reserved to the States respectively, or to the 
people." — Amendments, Article 10. 

" The powers" — Wliat powers % All possil >le and impos- 
sible, conceivable and inconceivable powers'? — The power 
to make black white, and white black 1 — to reduce immor- 



3S AMERICAN CONSTITUTIONAL LAW. 

tal souls to chattels ? — to transform lawlessness into law 1 to 
construct a rectangular triangle whose three angles shall not 
be equal to two right angles I 

To hear some men tall about the "reserved rights of the 
States" one would think that those rights included the right 
of omnipotence; or rather, the right to do what omnipotence 
itself can not do. 

"Arc reserved" Notice the words. "Reserved" not origi- 
nated : — " Reserved" not "guarantied." 

"Strict construction" will insist upon a rigid adherence, to 
the words, in their obvious and customary meaning, as ap- 
plicable to the matter in hand. 

"Power.'' 1 " The right of governing, or actual government" — " legal au- 
thority, warrant" — "right, privilege.'' — Webster's Dictionary. 

The "reserved RIGHTS of the States" can not include 
reserved WRONGS ! — The powers "reserved to the States 
or to the people" are rightful powers — rightful autJwrity. 

It is not provided, nor affirmed, in this article of amend- 
ments to the Constitution that the States or the people may 
do, whatever the Congress and the United States may not 
do! There are many, very many things, that neither people, 
States, Congress, nor CJnited States, may lawfully, or consti- 
tutionally do. i\s for example, neither People, nor State 
Governments, nor Congress, nor United States, may lawfully, 
or constitutionally, select every :enth man in a township, or 
tenth man in a hundred, throughout the country, and confis- 
cate their property, pro bono publico, and then colonize them 
to Liberia, to "get rid of them." They may not string up 
to the yard arm, every Irish emigrant that reaches the 
country, because he is not a " Native American." They may 
not seize upon Joseph Story, or Henry Clay, or Martin 
Van Buren, and drag them to unpaid labor in the rice 
swamps of Carolina, without jury trial, without charge of a 
crime. They may not seize upon every man with a hair lip 
or with red hair, or with black skin and crisped hair, and do 
the same thing with them. Nor mat/ they suffer it to be done 
by others. And though it should be proved that among "the 
powers delegated to the United States by the Constitution," 
and " prohibited by it to the States" no mention whatever is 
made of the power or authority to do or not to do the things 
that have been described — it would not follow from the 10th 
article of Amendments to the Constitution, that either " the 
States or the People" have a right to perpetrate or to tolerate 
such crimes. It would not follow that their participancy in- 



AMERICAN CONSTITUTIONAL LAW. o9 

or toleration, or legislative sanction of such crimes was con- 
stitutional, it would not \JbU0w that Congress, and the Uni? 
ted States possess no rightful and constitutional authority to 
suppress such criminal practices. Thus far, at least, a " strict 
construction" of the article, by the proper meaning of the 
words may conduct us. Uut this is not all. 

It is not to be taken fur granted, without scrutiny, (as is 
commonly done) that the power of abolishing slavery is not 
delegated to the United States, by the Constitution. Nor is 
it to be thus taken for granted that the practice and legisla- 
tive sanction of slavery is not by the National Constitution, 
prohibited to the States. Lf the opposite of the commonly 
received doctrine, on these points, should bo found true, the 
tenth article of the amendments to the Constitution of the 
United States will, itself, have to be "reserved to the States 
respectively, or to the People" for some worthier, some 
more dignified and republican use than that of attesting the 
constitutional right of baby stealing, and woman whipping, 
and selling boys and girls at auction, along with tallow can- 
dles, by the pound ! 

SECTION II. 
THE CLAIMS OF LIBERTY, 

The Preamble — Union justice, domestic tranquility, common defense, ge- 
neral welfare, liberty — Powers of Congress — Power over commerce — A 
"Republican form of Government," (definitions of a republic by various au- 
thorities) — Security of liberty, "due process of law' 1 — Slavery in the Terri. 
lories and Federal District — The Constitution and the District of Columbia— 
Restrictions on State power-— Inhibition of bills of attainder, laws impairing 
the obligation of contracts, titles of nobility, (aristocracies, feudalism) mak- 
ing war, troops in time of peace— Immunities of citizens in each State — 
The summing up — Shylock and his pound of flesh — The Conclusion. 

Having patiently examined those portions of the Consti- 
tution that are claimed in support of slavery, we may now 
be permitted to inquire what portions of the document, if 
any, may be regarded as friendly to liberty. It will be 
remembered that we are still litigating our cause in the 
Court of "strict construction" — where a final disposal of 
the claims of slavery upon the Constitution is deferred, until 
the claims of liberty can be first examined. At the Court of 
"strict construction" it is a well understood axiom that a 
document in favor of slavery can not be in favor of liberty ; 
and that a document in favor of liberty can not be in favor 
of slavery: that to establish the one claim is to overthrow the 



40 AMERICAN CONSTITUTIONAL LAW. 

other. " Strict construction" studies, and sticks to, the dic- 
tionary ; it goes by the meaning of the words, and hence the 
axiom that has been quoted, since the words "liberty" and 
"slavery" are opposite terms. 

The Preamble. 

" We, the people of the United Slates, in order to form a more perfect 
union, establish justice, ensure domestic tranquility, provide for the com- 
mon defense, promote the general welfare, and secure the blessings of LI- 
BERTY to ourselves and our posterity, do ordain and establish this Consti- 
tution for the L nited biaies of America." 

"Strict construction" always holds the object and design of 
a decent and respectable document to be what it declares it- 
self to be. At least it does this, until it can be proved, by 
the laws of "strict construction" to declare an untruth, and 
then it no longer remains respectable or trust-worthy. Noth- 
ing further need or can be done with it, in that case, but 
to proclaim its true character. While the Constitution of 
1787-9 claims either respect or authority, it must be constru- 
ed, to mean and intend what it says it means and intends. 

And what does it say it means and intends 1 What mean- 
ing and intent do the words it employs, (in their natural and 
ordinary acceptation,) convey? The Constitution says it 
means the following things: — 

1. "To form a more perfect union." Then it does not 
mean to " permit one half the citizens to trample on the 
rights of the other — to transform those into despots, and 
these into enemies" — as is done by slavery. 

2. " To establish justice!' Then it does not mean to 
"guaranty" or toleTate injustice. It means to abolish and 
overthrow it, and there can be no greater injustice than 
slavery. 

3. "To ensure domestic tranquil it]/." Then it does not 
mean to guaranty or permit "domestic violence." It means 
to forbid and restrain it. There is no "domestic violence" 
equal to slavery. And nothing like slavery conflicts with 
"domestic tranquility." 

4. " To provide for the common defense^ Then it does 
not mean to permit a common warfare upon the defenseless. 
It does not mean to defend the aggressors. It does not mean 
to make "compromise" with a system that renders a "com- 
mon defense" against foreign invasion impracticable, by "de- 
stroying the morals of the one part, and the amor patrce of the 
other." It means of course, to abolish slavery, since, by no 
other method, can the "common defense" be provided for, 
or made possible. 



AMERICAN CONSTITUTIONAL LAW. 41 

5. " To promote the general welfare." Then it can not 
mean to promote or "guaranty " the known and admitted 
enemy of the "general welfare" — slavery. It can not mean 
to lend its aid in crushing the laboring, the producing class, 
in half the States of the Republic; as it would- do, if it make 
a compromise with slavery. 

6. "To secure the blessings of liberty to ourselves, and 
our posterity" Then it means to overthrow the deadly an- 
tagonist of liberty, to wit, slavery. 

These results are as certain as it is that the meaning or 
intent of any document is to be ascertained by its own ample, 
clear, express, unambiguous, and distinct language. In other 
words, they are as certain as it is that "strict construction" 
or any other sort of construction, can determine the meaning 
of the Constitution. " Strict construction" must pronounce 
judgment in favor of liberty and against shivery, or decide 
that the Court has no jurisdiction — that "strict construction" 
has no right to a seat on the wool-sack. 

o 

Powers of Congress. 

But has the Constitution clothed Congress with the au- 
thority and power ta carry into execution the meaning and 
intent of the Constitution itself'? Let us see. 

" The Congress shall have pqwev" — "1 H lazes which shall be 

necessary and proper, for carrying into execution the foregoing powers, 
and all either powers, vested by this Constitution in the Government of the 
United States, or in any department or officer thereof." — Art. I, Sect. 3, 
Sect. 17. 

And so the Constitution itself gives an explicit and direct 
affirmative answer, to the question. " Strict construction" 
has nothing to do but to record and re-echo it. 

But suppose the legislation of Gmgress in accordance with 
the Constitution of the United States, should conflict with State 
legislation, the question may be asked — " Could such State 
legislation, in that case, be legally and constitutionally set 
aside, as null and void % Could the Federal Courts so de- 
cide, and render such State legislation of non-effect 1 And 
must the State authorities acquiesce V* There is a provision 
in the Constitution containing a direct and explicit answer 
to this question likewise. 

" This Constitution, and the taws of ihe United States which shall be 
made in pursuance thereof, and a 1 ! treaties which shall he made under the 
authority of the United States, shall he THE SUPREME LAW OF THE 
LAND, and the judges in evei >/ State shall be bound thereby, ANll THING 
in the CONSTITUTION or LAWS OF ANY STATE TO THE CON- 
TRARY NOTWITHSTANDING." 



£2 AMERICAN CONSTITUTIONAL LAW. 

Whatever, therefore, in the action of any of the States, 
conflicts with the Constitution of the United States ; what- 
ever conflicts with the laws of Congress, made in accordance 
with, and "in purs&ance" of, the grand objects of that Con- 
stitution, is unconstitutional, illegal, null, and void, [t can 
not have the authority of taw. 

Just as certain, therefore, as it is that the Constitution of 
the United States was "ordained" to "establish TTS CJ.CE" 
"and StfCb .'. . the blessings of LIBERTY to ourselves u?id 
our POSTERITY''— just as certain as it is that the slave 
codes and enactments of the slave otates establish injustice, 
and rende : the liberties of ourselves and our posterity inse- 
cure — just so certain as it is that the Constitution has con- 
ferred on Congress " power to make all laws which shall be 
necessary and p-oper for carrying into execution" the ex- 
press and declared objects of the Constitution itself; just so 
certain is it (on the principles of "strict construction" J that 
a law of Congress, abolishing slavery in the States where it 
exists, would be the " Supreme taw of the land," and the 
judges "in every State" would "be bound thereby, any 
thing in the Constitution or laws of any State to tho contrary 
notwithstanding." The plain, direct and express words of 
the Constit ition of ,he United States, literally taken, say 
precise^ this thing ; and there i no escape from it, without 
appealing ^RO?/ F the tcords of the Constitution to the sup- 
posed intentions of the framers — and this is exactly what 
" strict construction" can not permit. 

But this, it may be said, is all " in the general." And. 
some persons appear unable to distinguish between general- 
ities and non-entities. Their vision is microscopic. The 
mo ; :e ample the d ; iiensiois of the object, the less capable 
they are of perceiving it. Had the Constitution specified 
some very minute matte" in which either " union," "jus- 
tic," " do?nestic tranquility," the " common defense," " the 
genera 1 welfare," 01 " the blessings of liberty," were involv- 
ed, the meaning would have been palpable enough. Pe - 
haps even as large an object as chattel slavery itself, might 
have been seen, had it but been singled out and separated 
from all similar things, of the same class, and called by its 
technical name. (Such men can not see that slavery is for- 
bidden in the Bible, though they understand that extortion, 
and using service tvithout tvages are there forbidden !) But 
Constitutions are not commonly adapted or intended to be 
substitutes for the statute book. And because the Constitution 
employs terms which describe and include slavery along with 



AMERICAN CONSTITUTIONAL LAW. 43 

similar usages, it is difficult to make these persons see that 
it describes or means any thing at all! Their " strict con- 
struction" would be equivalent to no construction, since they 
allow nothing to be contained in the document, that is not 
expressed by a technical term. 'Twere well nigh useless 
to reason with such. From generalities we will pass to such 
■particulars as we may l>e able to glean. 

Power over Commerce. 

" The Congress shall have power" '-lo regulate commerce with foreign na- 
tions, and among the several Stales, and with the Indian tribes." — U.S. 
Const. Art. I. Sect. 0. Clause 3. 

Slaves, in law, are " goods and chattels personal." As 
such they are articles of commerce. And it is held and 
pleaded by the slaveholder that, " that is pronerty which ihc 
law declares to be property." The whole question, then, of 
the chattelhood and commerce in slaves, is in the hands of 
the law making power, whereve- that power is lodged. No- 
body pretends that slaves could beheld and sold as property 
without specific enactment of the legislative authorities. The 
right to hold and sell slaves as chattels is not claimed to be 
a natural, original, and inherent right. It rests solely on the 
statute. 

Well, then, the Constituti »n of the United States as above 
quoted, provides that this whole power " to regulate com- 
merce" to " declare what is property," and what is not pro- 
perty, to say what shall be or shall not be bought and sold, 
and if so, under what restrictions, is vested in the Congress 
of the United States, and being thus vested, it is denied to 
the legislatures of the several States, so far forth, as " com- 
merce with foreign nations, and among the several States, 
and with the Indian tribes," is concerned. m all this field 
of commerce, "that is property which the law" of Congress 
" declares to be property" — if the commercial law maxims 
of the slave code are to be our guide — that is, if slaves are 
to be deemed chattels at all ! 

Thus far, in the Court of " strict construction," all is 
" plain sailing" enough. How all this is to operate, or what 
bearing it is to have upon the tenure upon which slave pro- 
perty is held in certain States of this Union, " strict construc- 
tion" has no occasion now to inquire. A little interlocutory, 
lobby conversation, however, on this point, may be here 
indulged. 

[If Henry Clay has taken the right view of the subject 
(and it is not easy to see what other view any claimant of 



44 AMERICAN CONSTITUTIONAL LAW. 

slave property can take) it is manifest that, in the exercise of 
their constitutional power, under this clause, the Congress of 
the United States may strike a deep, if not a fatal blow at 
the very root of all slave property at the South. For, as an 
argument against such congressional action, Mr. Clay insists 
that the chattelship of ike slave can not he separated from the 
right to carry him from State to State, as an article of mer- 
chandise. The same principle would apply to the foreign 
slave-trade (though the immediate and direct practical oper- 
ation of its abolition might be less serious,) that is to say, 
the power that was competent to the abolition of the slave- 
trade, domestic or foreign ; was competent likewise to the 
abolition of slavery itself since both rested on the same basis, 
and the one was involved in the other, and depended upon it. 
On some such considerations, doubtless, was founded the 
general belief and assumptio'i, at the time the present Con- 
stitution was adopted, that the abolition of the foreign slave- 
traclc was to involve the abolition of slavery. The now as- 
certained impracticability of putting down the slave-trade, 
on the high seas, and in our own commercial cities, in the 
presence of slavery, is only another ill ustration of Mr. Clay's 
doctrine that the right of slave chaUchhip and the right of 
carrying on the slave-trade are one and indivisable ! These 
are his words : — 

" The moment the incontestible fact is admitted that negro slaves are pro- 
perty, the Jaw of movable property attache-; itself to them, and secures the 
right of carrying- them from one Slate to another, where they are recognized 
as property." — Speech in the Senaic. February 7, 1339. 

In view of the constitutional provision now under consid- 
eration, as a data of reasoning, yet retaining Mr. Clay's 
identification of chattelship with commerce, we may para- 
phraze and improve his logical process on this wise. 

' The moment the incontestible fact is admitted, that the 
Congress of the United States are by express provision^ of 
the Constitution, clothed with the power of "regulating 
commerce among foreign nations, and among the several 
States, and with the Indian tribes" — that moment the con- 
stitutional power of control over slave property in the sev- 
eral States, attaches itself to the Congress, and secures to 
that body the right to ' declare what is property,' and what, 
as being property, may lawfully be carried from one State 
to another.' 

if there be any flaw in this logic, it must lie in its adoption 
of Mr. Clay's doctrine, that the chattelship and the commerce 
of slaves can not be separated from each other.] 



AMERICAN CONSTITUTIONAL LAW. 45 

But all this estimate of consequences, is mere lobby talk, 
with which the Court of "strict construction" has nothing, 
on the present occasion, to do. The simple question before 
the Court, is the power of Congress over the foreign and 
domestic slave traffic, and that question resolves itself into 
the question whether slaves are, in the eye of law, subjects 
of commerce at all. If they are, that commerce, with all 
other commerce, within the limits described, is under con- 
gressional control. So " strict construction" must decide, 
without regard to the bearing the decision may have on the 
tenure of slave property in general. 

An ohjection has been raised, on the ground that the pow- 
er to " reguVcute commerce" is not the power to annihilate 
commerce. The objection is groundless for two reasons. 

In the first place, the prohibition of traffic in a particular 
commodity, and between certain specified localities or coun- 
tries, is not. an annihilation of commerce, but only a regula- 
tion of it. The making of the traffic in certain commodities 
contraband, does not annihilate commerce. The tariff of 
1SIG, designed and operating to exclude the cotton fabrics 
of Endia, was not an annihilation of commerce. 

But, in the second place, it has been decided by the Fed- 
eral Courts that the power to regulate commerce does carry 
along with it the power to destroy, to prohibit, to annihilate 
commerce* By the long embargo, under Mr. Jefferson's 
administration, not only foreign commerce, but coast-wise 
commerce between the States, and even the fisheries, were 
expressly prohibited and substantially destroyed. And when 
some merchants who had been prosecuted for a breach of 
the embargo law, defended themselves by contesting the 
constitutionality of that law, and on this same plea that "the 
power to regulate commerce is not the power to annihilate 
commerce," no plea nor evidence was offered, on the part 
of the Government, to disprove the alleged fact, that com- 
merce was annihilated by the embargo. The plea in Court 
against the defendants, was, that the power to regulate com- 
merce, being an indefinite and unrestricted power, carried, 
of necessity, along with it the discretionary power, to pro- 
hibit all commerce. The plea was offered as a " strict con- 
struction" plea. The Court adopted it as such, declaring that 
they must be bound by the words and not by the consequen- 

*How well the strict letier of the Constitution agrees with Mr. Clay's identification 
of chattel-hip with commerce; how t'.i- Constitution, or how Mr. Clan's doctrine 
would hear upon the free trade and tariff question — or which view ought to prevail, 

we are not now concerned to inquire. We have only to con-true- the Constitution by 
its own words. 



46 AMERICAN CONSTITUTIONAL LAW. 

ces of the Constitution. Judgment was accordingly given 
against the defendants, and the embargo law was sustained. 

To the uninitiated, it may appear somewhat remarkable 
that the same persons who cite the clause concerning "mi- 
gration and importation" in illustration of the "compromises 
of the Constitution" in regard to slavery, (inasmuch as the 
power of prohibiting the slave-trade, was withheld as they say, 
from Congress, for twenty years) — should nevertheless con- 
tradict their own conclusions, by denying thai now, after the 
twenty years are expired, the Congress possesses any such 
power 1 It was under their olvn construction • >f the Constitu- 
tion, that the slave-trade was first tolerated, against the then 
prevailing sentiment of the country, till 1S0S, and under the 
same construction, it was then abolished, to a certain extent ; 
and now that a further exercise of the same power is invoked , 
to complete the prohibition commenced in 1808 the consti- 
tutional power is denied on the ground t^at the clause does 
not touch slavery, at all ! But '"commerce with foreign na- 
tions" and commerce "among* the several States" are 
placed on precisely the same footing, in the clause before us, 
under which the foreign slave-trade was abolished. In this 
we have another specimen of the trust-worthiness of the 
constitutional expositions, on the subject of slavery, that have 
li'iticrto prevailed I 

We dismiss this topic by inviting attention to a dilemma, 
of which the opponents of our doctrine may select which, 
horn they prefer. 

If the slave States persist in holding the slaves as "goods 
and chattels personal" the laic of "goodfe and chattels person- 
al" attaches itself to them, Constitutional Law and the laws 
of Congress not excepted, securing to Congress, under this 
clause of the Constitution, the right of exercising; the same 
powers over slave property and slave commerce, as- over any 
other property and commerce. But the moment the slave 
States determine and affirm that slaves va'enot "goods and chat- 
tels personal — to all intents, constructions, and: purposes what- 
soever" — that moiiient every slave in those States is email ci- 



* "Among' the several States." Does this mean the same as between "the several 
S-tates 7" The latter phrase would better indicate exclusively a commerce- between 
the citizens of different States. " Among" would seem to comprehend likewise a traf- 
fic •'among" the citizens of the same States, and this would authorize Congress to. 
prohibit the buying and selling- of slaves entirely even" among " the residents of the 
same neighborhood or village. N-oah Webste* tells us- thut ■-'• among " means "mixed 
or mingled with" — as well as "conjoined or associated with, or making a> part of tho- 
Bttmber" — whereas "between' 1 ' 1 may "denote intermediate space, without- regard to 
distance." Were we pushed for an exposition,' or desirous of pushing the principle 
9 £u strict. construction." we might make something of this distinction. °t}ut.lct it pass,. 



AMERICAN CONSTITUTIONAL LAW. 47 

pated, and becomes a freeman — his chattelship disappears 
and he becomes p man in laiv as well as in fact. 

"A Republican form of Government." 

We have incidentally adverted, already to the Constitu- 
tional provision that "the Jnitid States .shall gttaranty* to 
every State i?i the Union, r rejtmbliean form 0/ government^ 
— Art. 1, Seat. !-. ft is time to consider, more directly, this pro- 
vision. What shall we understand by the word " guaranty V 

"Guaranty. 1. 10 wp.rrani; i o make sure ; to undertake. or engage that 
anothe; person shall perform what he Lias stipulated. 2. To undertake to 

secure to anoJher, at all events. 3. To indemnify ; to save harmless.*' 

Webster's Dictionary. 

The United States, then, will "warrant," will "make 
sure," " to every State in this Union," and to all the inhab- 
itants thereof, "a repnblican form of government." Til© 
United States " undertake or engage" to see to it that other 
persons besides those directly wield mq- the Federal Govern- 
ment, that the- persons charged with the affairs of tl e State 
Governments " shall perform what they have stipulated," 
by maintaining " a republican form of government." The 
United Slates " undertake to secure, A' r ALL E { /ENTS," 
"to every State in the Union" the government described. The 
United States will " indemnify," will " save harmless" from 
all attempts, in any direction, 07 from any quarter, to subvert 
such a government. Whatever is incompatible with a re- 
publican government, in any of "the States of this Union," 
"the United States" have bound themselves to abolish and 
suppress. 

What then, are we- to understand, by " a republican form> 
of government V* . 

" Republic. 1. A coin nonwealth ; n State in which the exorcise of the 
Wvereign power is lodged in representatives elected by Ike people. 2. Com- 
mon interest; the public." (obs.) imc^Webste*** Dictionary. 

" Republican. [. Pertaining to a republic; consisting of a commonwealth. 
2. Consonant to the principles of a republic." — //;. 

If slavery be contrary " to the principles of a republic," 
then slavery is anti-republican, ai.d of course the United 
States have guarantied, to every State in the Union, an ex- 
emption from slavery. But the well " known principles of a 
republic" are — that " all men are created equal, and are en- 
dowed by their Creator with certain inalienable rights,. 
amoncr which are life, liberty and the pursuit of happiness." 

* It wnuld seem that the framers of the Constitution were not unacquainted with, 
the English word ^guaranty," and that when they meant to "guaranty" any thin-', 
(Jiey could distinctly au d unequivocally sc» so. 



48 AMERICAN CONSTITUTIONAL LAW. 

Any government not in accordance with these " principles" 
is not a republican government. 

" The sovereign power" of a State is not " lodged in rep- 
resentatives elected by the people," in States where one 
fourth, one third, or one half of " the people" are held in 
slavery. There is no " common interest," no " common- 
wealth" in States where " one half of the citizens" are " per- 
mitted" by legislative enactments, " to trample on the rights 
of the other" — to " transform those into despots, and these 
into enemies." 

We are not going beyond the strict letter of the Constitu- 
tion, the meaning of the words it employs, when we say this.^ 
Our construction is not only not beyond the literal import of 
the words, but is based directl// upon them. " Strict construc- 
tion" can make nothing more and nothing less out of them. 

But in seeking to ascertain the literal meaning of the words, 
we are not confined to the dictionaries in common use. We 
may appeal to any other good literary authority for the mean- 
ing of words, just as the compilers of dictionaries cite stan- 
dard writers. If the Constitution or any other legal instru- 
ment uses scientific terms, we must go to the masters of sci- 
ence for the meaning of them. If it uses Common Law terms 
or phrases, we must go to the volumes of Common Law to 
find out the meaning of them. If it employs words in com- 
mon use among statesmen, civilians, and moralists, we must 
go to eminent statesmen, civilians, and moralists, for a defi- 
nition of the terms. And those of the same age and nation, 
other things being equal, will be the best authority for ascer- 
taining the ordinary import of the words. This reference 
to the current literature of a people or of their language, to 
their, public documents and archives (such as our National 
Declaration of Independence,) or to approved writers and 
eminent statesmen, to ascertain the ordinary import of the 
language or the words, of a written document, like the Con- 
stitution, is not only permitted but required by the law of 
" strict construction" which confines us to the meaning of the 
words, and therefore sets us at work to ascertain, by all the 
means in our power, their "precise import. Such a reference 
is not to be confounded with an appeal to (perhaps) the same 
literature, statesmen, and writers, for the purpose of ascer- 
taining, (otherwise than by the meaning of their words,) the 
intentions, and designs, the motives and the policy of the'fra- 
mers of the Constitution, or instrument, under examination. 
With these explanations, we cite some further definitions of 
" a republican form of government." 



AMERICAN CONSTITUTIONAL LAW. 49 

We have so far anticipated this topic as to cite the defini- 
tion contained in the Declaration of Independence. To the 
same point we might also quote the " Bills of Rights," " Dec- 
larations," Preambles, Constitutions, &c. &c, of the different 
States, which form so prominent a feature of the political 
literature of the age and nation in which our Federal Con- 
stitution was drafted. But we forbear. They are too vo- 
luminous for convenience — too well known and too unequiv- 
ocal for dispute. They all look to the establishment of re- 
publican government, and they all lay the foundation of such 
government in the doctrine that all men are born equal, and 
possess an inalienable right to liberty. They make the very 
pith and essence of a republican government to consist in the 
protection and security of those rights. The political lite- 
rature of America knows of no other republicanism than 
that which recognizes and professedly secures such rights. 

To quote to proper advantage, Mr. Jefferson's definition 
of a republican government, would be to transcribe a great 
part of his writings. A brief epitome of it we have in his 
Declaration of Independence. We have it likewise in such 
propositions as the following : 

"1. The true foundation of REPUBLICAN GOVERNMENT is the 
equal rights of EVERY CITIZEN, in his person and property, and in their 
management^ 

This is equivalent to a flat denial that any government can 
be a " republican government" thet is not FOUNDED upon 
" the equal rights of EVERY CITIZEN," fee. And in 
his Notes on Virginia, the same writer has described the 
legislation of SLAVE STATES as " permitting one half of 
the citizens to trample upon the rights of the other" — thus 
explicitly recognizing the slaves as citizens. And the gov- 
ernment thus described, deserves, he says, to be " loaded 
with execration? instead of being cherished as a true repub- 
lican government. So says likewise the Constitution of 
the United States, and " guaranties to every State in this 
Union" an exemption from the curse of such an execrable 
government. " The United States" have therefore " guar- 
antied to every State in this Union" a government founded 
— based upon " the equal rights of EVERY CITIZEN, in 
his person, and projiertj/, and in their management." Can 
human language express a more full and unequivocal guar- 
anty than this, of the abolition, by " the United States," of 
all the slavery in " every State in this Union?" 

But let us examine the connected propositions of Mr. Jef- 
ferson, that his full definition of a" republican government" 

4 



50 AMERICAN CONSTITUTIONAL LAW. 

may be distinctly before us. To the above statement he 
adds : 

"2. The rightful 'power of all legislation is to declare and enforce only our 
•natural rights and duties, and to take none of them from vs. No man 
has a natural right to commit aggression on the equal rights of another ; 
and this is all from which the law ought to restrain him. Every man is 
under a natural duty of contributing to the necessities of society, and this is 
all the law should enforce on him. When the laws have declared and enfor- 
ced all this, they have fulfilled their functions." 

" 3. The idea is quite unfounded that on entering into society,, we give up 
any natural right. 11 

The full bearing of all this upon the legality and validity 
of slave laws, any where and every where, we do not discuss 
now. In another connection we may, if we have room, ad- 
vert to it. What we have to do here is to find out, in the 
light of our current literature and lexicography, the meaning 
of the phrase, "a republican form of government." And the 
reader will see that Mr. Jefferson's definition does not cover 
the government of a slave State. 

We will next introduce Mr. Madison to the stand, and 
ask him to define for us the phrase, " republican form of gov- 
ernment?' Very fortunately for us, Mr. Madison has left us 
his definition in " black and white," published under his own 
eye — a definition framed for the very purpose of telling the 
People of the United States what is a republican govern- 
ment, while the question of adopting the Constitution was 
pending their decision. At that precise period it was that 
Mr. Madison, Mr. Jay, and Mr. Hamilton undertook, jointly, 
the task of defending and explaining the Federal Constitu- 
tion, in a series of essays, which were afterwards collected 
together, and published in a volume entitled, " The Feder- 
alist,'" &c* From an article of Mr. Madison in this book, 
we will now present an extract. And Mr. Madison was a 
prominent member of the Convention by whom the Consti- 
tution had been framed and submitted to the States. 

" Number XXXIX," of the Federalist, " by James Mad- 
ison," contains the following : 

" The first question that oners itself is, whether the general form and 
aspect of the government bestrictly republican 'I It is evident that no other 
form would be reconcilable with the genius of the people of America; with 
the fundamental principles of the Revolution ; or with that honorable de- 
termination which animates every votary of FREEDOM, to rest all our po- 
litical experiments on the capacity of MANKIND for SELF-GOVERN- 
MENT. If the plan of the Convention therefore, be found to depart from 
the republican character, its advocates, must abandon it,, as no longer defers 
sible." 

* " TWe Federalist, on the New Constitution, written in the- year 1768, by Mr. HaoV- 
iltc#, Mr. Madison, and Mr. Jay," &c. &g, 



AMERICAN CONSTITUTIONAL LAW. 51 

The reader will please notice, in this paragraph, (1) that 
it is a "republican form of government" that Mr. Madison is 
intent on describing : (2) that he identifies such a form of 
government with " the fundamental principles of the revolu- 
tion" — its self-evident truths, and inalienable human rights, 
(3) with " freedom ;" and (4) with a recognition of " the ca- 
pacity of mankind for self-government." But Mr.. Madison 
proceeds : 

" What, then, are the distinctive characters of the republican form ? Were 
an answer to this question to be sought, not by recurring to principles, but 
in the application of the term by political writers, to the constitutions of dif- 
ferent States, no satisfactory one would ever be found'. Holland, in which 
no particle of the supreme authority is derived from the people, has passed 
almost universally under the denomination of a republic. The same title has 
been bestowed on Venice, where absolute power over the great body of the 
people is exercised, in almost an absolute manner, by a small body of hered- 
itary nobles. Poland, which is a mixture of aristocracy and of monarchy, 
in their worst forms, has been dignified with the same appellation. The 
government of England, which'has one republican branch only, combined 
with a hereditary aristocracy and monarchy, has, with equal impropriety, been 
frequently placed on the list of republics. These examples, which are nearly 
as dissimilar to each other as to a genuine republic, show the extreme inac- 
curacy with which the term has been used in political disquisitions." 

The American and modern meaning of the word " republi- 
can," according to Mr. Madison, is widely different from the 
meaning which some European writers of former times had 
put upon it — a consideration which is of importance to be 
kept in mind. Mr. Madison proceeds still further : 

" If we resort for a criterion, to the different principles on which different 
forms of government are established, we may define a republic to be, or at 
least may bestow that name on, a government which derives all its power3 
directly, or indirectly from the great body of the people, and is administer- 
ed by persons holding their offices during pleasure, for a limited period, ov 
during good behavior. It is essential to such a government, that it be deriv- 
ed from the great body of the society, not from an inconsiderable pro- 
portion, OR, a favored class of it ; otherwise a handful of tyrannical nobles, 
exercising their oppressions by a delegation of their powers, might aspire 
to the rank of republicans, and claim for their government the honorable title 
of republic. It is sufficient for such a government that the persons adminis- 
tering it be appointed, either directly or indirectly, by the people, and that 
they hold their appointments by either of the tenures just specified ; other- 
wise, every government in the United States, as well as every other popular 
government that has been or can be well organized, or well executed, would 
be degraded from the republican character.' 11 

Very evidently a slave State can not be a republic, accord- 
ing to the definition of Mr.. Madison*. It is essential to a re- 
publican form of government, says Mr. Madison, that its 
power " be derived from the great body of the society ; not 
from an inconsiderable proportion; OR" from "A h A- 
YOEED, CLASS of it." The disjunctive " or" expresses. 



52 AMERICAN CONSTITUTIONAL LAW. 

distinctly, Mr. Madison's denkl that a State can have " a re- 
publican form of government" whose power is derived from 
" a favored class,'" although that favored class may be even 
a majority of the inhabitants. The holding of the power by 
" a favored class" is inconsistent with the " republican char- 
acter" of the government. In every slave State, the slave- 
holders, or, if you please, the whites, are " a favored class" 
who hold all the political power ; " exercising their oppres- 
sions by a delegation of their powers." In some of the 
States the whites are a minority, in all of them the slavehold- 
ers, who substantially wield the State governments, are. 
And in the aggregate of all the slave States, these " tyrannical 
nobles" are comparatively, a " handful," being less, by esti- 
mation, than two hundred and fifty thousand, in the thirteen 
slave States, among the seven millions of inhabitants of those 
States, and in the presence of nearly three millions of slaves. 
So that the actual slaveholders, the Only really "favored class" 
in the slave States, and on whose behalf this " oligarchy" is 
maintained, are less than one tenth as numerous as the slaves 
to whom they deny all the essential rights of humanity, as 
well as political power ! If neither Holland, nor England, 
nor Poland, nor Venice, may be called republics — because 
of their aristocracies and their monarchies, what shall be 
said of our slave States % 

Will it be said that Mr. Madison was treating of Federal 
and not of the State governments ] That he had no refer- 
ence to the slave States 1 or to slavery ? That he did not 
mean to deny the republican character of the slave States % 
That he would have resisted any such application of his 
doctrine 1 

Some of these statements would first need to be proved. 
But granting, for the argument's sake, that they were all 
true — w hat then ] It would only make the testimony of 
Mr. Madison the more available for our purpose. For it 
would be giving us the testimony of an opponent, to the ver- 
ity of our premises ! We were not citing Mr. Madison's 
opinions about our conclusions ! No. Nor about the inten- 
tions of the framers of the Constitution. We only sought 
from him a definition oftlicjrirase " republican form of govern- 
mcntr That definition he has furnished. And all impartial 
men will see that, whatever he intended, or whether he in- 
tended any thing at all, in relation to this subject, his defini- 
tion does as a matter of fact, exclude slave States^ from 
the list of republics. Incidental testimony, or testimony 
against the interests or the opinions of the witness, is the 



AMERICAN CONSTITUTIONAL LAW. 53 

most unimpeachable testimony that can he produced. If 
Mr. Madison's opinions of the subject of slavery and its rem- 
edy were altogether co-incident with our own, or if Mr. Jef- 
ferson's were, we should be charged with citing the testimo- 
ny of " fanatics," the testimony of our own partisans and 
leaders ! 

Mr. Madison was indeed treating of the Federal and not 
of the State governments. He gave a definition of a " re- 
publican form of government" nevertheless. It was the 
meaning of the words we were seeking after. That meaning 
is ascertained. And until it can be made to appear that the 
phrase " a republican form of government," means a govern- 
ment in favor of liberty when applied to the Federal Gov- 
ernment, but means a government in favor of slavery, and 
against liberty, when applied to the government of " every 
State in this Union," it will remain demonstrably certain 
that, by the provisions of the Constitution of 1787-9, " the 
United States shall guaranty to every State in this Union" 
the abolition and the absence of slavery. There can be no 
protest filed against this decision, that shall not amount to 
an appeal from the Court of " strict construction" to that of 
some other tribunal. 

And yet we have other witnesses to produce. Two sep- 
arate Congresses, the one immediately before, and the other 
immediately after the Federal Constitution was adopted, de- 
liberately and almost unanimously abolished and forever pro- 
hibited slavery, in the only territory, (as distinguished from 
States) then belonging to the national domain. And they 
saw fit, in this solemn act, to state with precision the ground 
on which this National Legislation was based. And what 
was it 1 They affirmed that they did so, for the purpose of 
" extending the fundamental principles of civil and religious 
liberty which FORM THE BASIS wherever these RE- 
PUBLICS, their laws, and their CONSTITUTIONS are 
erected." 

That is, they abolished and forever prohibited slavery in 
the North West Territory, soon to be formed into new " States 
of this Union''' because they wished to " extend" prospect- 
ively, to those States, "a republican form of government" 
which they could not possess, if slavery remained. We stop 
not to insist now, on the very explicit declaration here em- 
bodied, that SLAVERY is repugnant to the CONSTITU- 
TIONS of the American republics, the States. That item 
may fill a niche in another part of our argument, if we should 
not, in the plenitude of our resources, lose sight of it. All 



54 AMERICAN CONSTITUTIONAL LAW. 

we urge here, is simply the definition furnished by these 
two Congresses, just before and after the adoption of the 
Federal Constitution, of the meaning of the terms it employs, 
when it speaks of a rejmblican government. We claim that 
this, along with other items of our then current political lit- 
erature, decides the ordinary import of the phrase, and de- 
cides it against the "republican character" of a slave State. 

In attestation of the justness of this claim, we cite another 
witness ; General Heath, of Massachusetts. In the Debates 
in the Massachusetts Convention of 1798, on the question of 
adopting the Constitution of the United States, Gen. Heath, 
having adverted to the subject of slavery, and to the then re- 
cent act of Congress prohibiting it forever in the North 
West Territory, said, " By their ordinance, Congress has 
declared that the new States shall be REPUBLICAN 
STATES, and have NO SLAVERY!"— Deb. Mass. Conv. 
<p. 147. 

Thus evident and certain is it the American political lit- 
erature, along with the American Dictionary, so defines " a 
republican form of government" as to exclude slave States 
from coming within the definition. 

And American writers, or those of the more modern date, 
are not alone in these views of a republic. The celebrated 
Montesquieu, one of the most distinguished of French au- 
thors, and who died more than twenty years before the Dec- 
laration of American Independence, in his " ~Esprit des Loix," 
(Spirit of Laws) first published in 1748, translated and re- 
published in England and America, and now for eighty years 
a standard work in both hemispheres, is scarcely less explicit 
on this subject. 

" In democracies, where they are all upon an equality, and in aristocracies, 
where the laws ought to use their utmost endeavors to procure as great an 
equality as the nature of the government will permit, slavery is contrary 

TO THE SPIRIT OF THE CONSTITUTION," &C. Spirit of LatOS, Vol. 1., Book 

XV., Chap. 1. 

Not only in democracies, then, but even in aristocracies, 
(which we, in America do not deign to reckon among repub- 
lics,) this profound writer on the Spirit of the Laws regards 
slavery to be unconstitutional, from the very nature of the 
government ! Yet Montesquieu was educated, and wrote, 
under the old French Monarchy ! Do our American defini- 
tions of" a republican form of government" fall below those 
of a Montesquieu 1 ? Does the definition, in America, now, 
include less of the ideas of liberty, equality, and inalienable 
human rights, than it did in Europe a century ago 1 We 



AMERICAN CONSTITUTIONAL LAW. 55 

are only inquiring after the meaning of words. But impor- 
tant changes in the meaning of words, may sometimes reveal 
to us important changes in something else. The meaning 
of " a republican form of government" in this country, in 
17S9, is sufficiently ascertained. On the present and rising 
generation it may depend, whether it shall long retain any 
meaning at all ! 

We have some further definitions to adduce. 

Can that be a rc])ublican government which is not even a 
free government ] Some limited monarchies — that of Eng- 
land, for example — are sometimes claimed to be free gov- 
ernments, by those who would not venture to call them 
republics. This question settled, we have another. Can 
that be a. free government that does not secure and maintain 
freedom of speech and of the press ? This latter question, let 
the slave State of Virginia herself, answer. 

" The freedom of the press is one of the great bulwarks of liberty, and 
can never be restrained, but by a DESPOTIC GOVERNMENT." 

All State Governments, then, that do restrain the freedom 
of the press, are "despotic governments," and not republics. 
So says the State of Virginia. But what slave State does 
not restrain freedom of the press 1 If there are some of 
them in which such freedom is not formally prohibited, in 
which of them is it maintained and preserved ? 

The statutes of Louisiana, Tennessee, and other slaves 
States, including Virginia herself, as adverted to, in our first 
chapter, furnish sufficient answers to these questions. And 
yet the Constitutions of Delaware, Maryland, North Caroli- 
na, South Carolina, Georgia, Louisiana, Kentucky, Tennes- 
see, Mississippi, Alabama, and Missouri, (all of them slave 
States,) to say nothing of the Constitutions of the non-slave- 
holding States, are full and explicit in affirming the inviola- 
ble rio-hts of free speech and a free press. By their own 
definition of a republican government, these States therefore, 
or such of them as do not maintain this freedom, are not 
republican States, and the United States have guarantied, 
and warranted, on their behalf, that they shall become so. 

We can afford but little room, here, for further quotations 
from the highly authoritative political literature of our coun- 
try by which the meaning of the phrase " republican form of 
government" is fixed and defined. But there is one speci- 
men now before us, so full and entire, that we must give it 
a place. 

" We the People, hereby ordain and establish this Constitution of Govern- 
ment, for the State of Delaware. Through Divine goodness ALL MEN 



56 AMERICAN CONSTITUTIONAL LAW. 

have by nature the rights of worshipping and serving their Creator according 
to the dictates of their consciences, of enjoying and defending life and 
LIBERTY ; of ACQUIRING and protecting reputation and PROPERTY, 
and, in general of obtaining objects suitable to their condition, without injury 
to one another, and as these rights are essential to their welfare, for the due 
exercise thereof, power is inherent in them:— and THEREFORE, ALL 
JUST AUTHORITY, in the political institutions of society is derived 
from the PEOPLE, and established with their consent, to advance their 
happiness; and they may, to this end, as circumstances require, from time 
to time, alter their Constitution of Government." 

The heaven derived right of ALL men to enjoy religious 
and civil LIBERTY, to acquire and hold PROPERTY, 
are here explicitly made the very FOUNDATION of those 
"■ political institutions" whose " authority" is " derived from 
the people" — that is to say — " republican forms of govern- 
ment." The connecting word " therefore" expresses this 
idea, and makes the paragraph, as a whole, equivalent to a 
declaration that WITHOUT the security of civil and reli- 
gious liberty, to " all men" including their right to acquire 
and possess foofieflfy, such "political institutions" as "repub- 
lican forms of government" could not exist. 

By a less rigid definition and " strict construction," of a 
"republican form of government," it might be found difficult 
to establish the claims of our American slave States, or many 
of them, to the character of republics. No one, certainly, 
can question the correctness of that part of Mr. Madison's 
definition, which says, "it is essential* to such a government 
that it be derived from the great body of the society, not 
from an inconsiderable proportion of it." A State, then, gov- 
erned by a minority can not be a republic. But some of the 
slave States, and it is believed, most of them, are governed 
by minorities. In South Carolina, Mississippi, and Louis- 
iana, the slaves themselves, (exclusive of the free people of 
color,) outnumber the white population. When it is remem- 
bered that no colored person can have any share in the gov- 
ernment, though that class are numerous in some of the 
States, and also that very few of the still more numerous 
class of non-slaveholding whites, (who, in those States, are, 
for the most part, very degraded,) can participate in the 
franchise, or hold office, it must be evident that, in most of 
the slave States, the government is in the hands of the mi- 
nority, and that this minority are slaveholders. 

The whole number of slaveholders in the United States, 
has been estimated at not more than two hundred and fifty 

* This italicizing is Mr. Madieon's in the paragraph before quoted from the Feder- 
alist. 



AMERICAN CONSTITUTIONAL LAW. 57 

thousand. Yet these are distributed in an aggregate popu- 
lation of above seven millions, in the thirteen slave States, 
the Territory of Florida, and Federal District, according to 
the census of 1840.* This exhibits a proportion of one to 
twenty-eight. Yet the slaveholders govern. Their propor- 
tion to the whole adult male population, we can only con- 
jecture or estimate; but very evidently they must be a small 
minority. The Constitutions of many of these States, mak- 
ing a landed estate a qualification of voters, and especially 
of legislative and executive officers, have virtually secured 
the supremacy of slaveholders. "Fifty acres of land" is re- 
quisite, in several States, to make a voter. A Governor of 
South Carolina, must be worth c£l,500 sterling, and a Sena- 
tor c£300 " of a settled freehold estate," and a representa- 
tive " a settled freehold estate of five hundred acres of land 
and ten negroes, or a real estate of c£150," &c, &c. In Ten- 
nessee, the Governor must own 500 acres of land, and a 
Senator 200. 

Whether therefore, we define a republic by its principles, 
its usages, its protection of human rights, or its sovereignty 
of the People, or of a majority of them, the slave States can 
not be called rejmblics. 

We dismiss this topic with a single inquiry. If, by the 
words and the phraseology of this clause, the United States 
have 7iot guarantied to every State in this Union an exemp- 
tion from the extremest possible departure from a republi- 
can government ; have not warranted and secured them 
from a government that shall chattelizc its citizens, " trans- 
forming some into despots and others into enemies," permit- 
ting "one half its citizens to trample on the rights of the 
other" — then we demand what it is that these words and 
phrases do signify] And what "form of government" the 
United States may not permit to be established and main- 
tained in the different States, without a breach of the guar- 
anty ] 

Security of Liberty : — " due process of law." 

The Constitution prepared by the Convention, in 17S7, 
among its declared and leading objects, as set forth in its 

*The census of 1840, exhibits the following. South Carolina. White persons, 
259,084. Free colored persons, 8,276. Slaves, 327,038. Mississippi. Free white 
persons, 179,074. Free colored persons, 1,369, Slaves, 195 211. Louisiana. White 
persons, 158,457. Free colored persons, 25,502. Slaves, 168,452. Suppose now, in 
these States, the slaves and free colored persons, should form a constitution of a " re- 
publican form of government," elect officers, and demand the Federal guaranty. 
What must Congress do 1 " Strict construction" remembers that the Constitution 
6ays nothing about SLAVES, and nothing about color. 



DO AMERICAN CONSTITUTIONAL LAW. 

first sentence, had distinctly enunciated its intent to "secure 
the blessings of liberty to ourselves, and our posterity." 
Yet the People, it seems, were desirous of some more spe- 
cific declaration of the manner in which this security was to 
be extended to them. So says the record of those times. 

" The Conventions of a number of the States, having, at the time of their 
adopting of the Constitution, expressed a desire, in order to prevent miscon- 
struction or abuse of its powers, that further declaratory and restrictive 
clauses should be added. Congress, at the session begun and held in the 
city of New York, on Wednesday, the 4th of March, 1789, proposed to the 
legislatures of the several States, twelve amendments, ten of which only were 
adopted." — Federalist, page 580. 

Among these amendments was the one from which we 
extract the following. We copy so much as relates to our 
subject. 

" No person shall be held to answer for a capital or otherwise infamous 
crime, unless on presentment or indictment of a grand jury," &c, &c, &c. 
* * * * " Nor be deprived of life, LIBERTY, or property, without 
DUE PROCESS OF LAW," &c, &c, &c— Amendments, Article V. 

It is to be observed and kept in mind that these "amend- 
ments" to the Constitution, added as they were, after the 
adoption of the original instrument itself, possess of neces- 
sity, and in their own nature, a corrective, a revisory character. 
They are not simply additions to the instrument; they are, 
what they are denominated, " amendments," alterations 
perhaps, — changes. If one clause or article of the original 
document had appeared to conflict, or had been found to 
conflict with another, it might have seemed difficult to de- 
cide upon their conflicting claims. For one clause, (it might 
be thought,) should be to be*regarded as of equal authority 
with another. Not so, when one of the conflicting clauses 
should be found in the original instrument, and the other in 
an " amendment.'" The " amendment," very manifestly, 
takes precedence, and displaces, annuls, repeals, abrogates, 
erases, whatever in the original instrument is found to conflict 
with it. 

Suppose it should have been found, then, or suppose we 
should now grant, for the arguments' sake, that all the 
parts of the original Constitution, already examined, are in 
favor of slavery, and none of them in favor of its abolition : — ' 
suppose it were an admitted fact, that the clauses concerning 
" persons held to service and labor" — concerning " appor- 
tionment of reprentatives and direct taxes" — concerning 
"migration or importation" — concerning the "suppression 
of insurrection"— "protection against domestic violence"- — 
and concerning " the reserved rights of the States"— sup- 



AMERICAN CONSTITUTIONAL LAW. 59 

pose, we say, it were certain that each and every one of 
these clauses did " guaranty" or did tolerate by * compro- 
mise" the existence of Southern slavery : — suppose further, 
that the original Constitution had contained no declaration 
of the purpose and intent to "secure the blessings of liberty" 
union, justice, tranquility, common defense and general wel- 
fare — had contained no grant to Congress of 'powers for the 
accomplishment of these ends, no declaration that the "Con- 
stitution of the United States and laws of Congress, made in 
pursuance thereof," should be held to be the " supreme law 
of the land" — suppose Congress had been clothed with no 
powers over " commerce with foreign nations, and among 
the several States" — suppose the United States had not 
guarantied " to every State in this Union a republican form 
of government" or that such a guaranty did not amount to a 
guaranty against slavery — what then ] If, among the sub- 
sequent " AMENDMENTS" to the Constitution, there can 
be found a single clause, or fraction of a clause, that either 
restricts or abolishes slavery by its own inherent efficacy 
and operation, or authorizes Congress, or enables the Na- 
tional Judiciary to restrict or abolish slavery, then that 
clause or fraction of a clause, being an " amendment" an al- 
teration, a repeal of all that shall be found to conflict with it 
in the original instrument, and supplying the omissions and 
defects of the same, provides for the abolition or restriction 
of slavery as effectually as if, in all the preceding particulars, 
the Constitution, as first adopted, had been the reverse of 
what our supposition has described. 

This being premised, we proceed to consider this fifth 
Article of Amendments. The. supposition just now made, 
that the original Constitution had " guarantied slavery," (if 
our opponents choose to retain it,) will do us no manner of 
harm, here. We are now to inquire after the meaning of 
an amendment. And if it were true that the People of the 
United States had pledged themselves to suppress insurrec- 
tions of slaves, to return fugitives from slavery, and in other 
ways to become the drudges and tools of the " peculiar in- 
stitution," thus involving themselves in its guilt, its disgrace, 
and its dangers ; such a circumstance, one would think, 
might well entitle them to have some share in defining the 
slavery they had " guarantied" — to assist in prescribing its 
tenure and its conditions — to declare who shall " be deprived 
of their liberty," and by what "process" they should be thus 
deprived of it. Otherwise they could not know what they 
had " guarantied" nor whether they themselves and their 
posterity might not become the victims of the guaranty! 



CO AMERICAN CONSTITUTIONAL LAW. 

But whether the original Constitution contained a guar- 
anty of slavery or not, it was confessedly thought important 
to define the conditions of liberty, and to say in what man- 
ner a " person" living under our government, could be " de- 
prived" of so inestimable a blessing. The clause before us 
contains that definition. What is its meaning ? What do 
the words say, in their ordinary import and acceptation ? A 
*' strict construction" is all we ask for, now, and that we shall 
insist upon. 

" No person shall be deprived," &c. That is, no "individ- 
ual human being, consisting of body and soul" — (as Noah 
Webster hath it) — no "man, woman or child" " shall be de- 
prived of liberty, &c, without due process of law." 

Shall be deprived of liberty — i. e. " the power of acting 
as one thinks fit, without restraint or control, except from 
the laws of nature."— Noah Webster. 

"Without due process oflaiv." — "Process. — In Law: — the 
whole • course of proceeding, in a cause, real or personal, 
civil or criminal, from the original writ, to the end of the 
suit." — Noah Webster. 

In order to understand the full power and significancy of 
this phrase, " due process of law" which the writer of this 
Amendment took of course, from the vocabulary of our 
Courts of Justice, and from the accredited law literature of 
our language, we must trace it back to its early use, and 
follow it down to the present time. 

" These words," says Alvan Stewart, "from the days of King John, in the 
Vale of Rnnney Meade, to the day of the final adoption of the Federal Con- 
stitution, have been employed and* understood, as having certain and fixed 
ideas." ■" The sturdy barons and wise men of England, compelled a volatile 
King to subscribe Magna Charta 500.years ago, containing the words of our 
'Article,' and from that day to this, every Englishman and American has 
claimed, as a part of his inheritance and birthright, the invaluable principle 
thnf'no person shall be deprived' of his life, LIBERTY, or properly, with- 
out due process of law. .' In fact this constitutional provision is nothing but 
one of those invaluable principles, priceless in character, drawn from the 
vast quarry of the common law." " It is believed that no lawyer in this 
country or England, who is worthy the appellation, will deny that the true 
and only meaning of the phrase ' due process of lay? is an indictment or 
presentment of a Grand Jury, of not less than twelve nor more that twenty- 
three men, a trial by a petit jury of twelve men, and a judgment pronounced, 
on the finding of that jury, by a Court."* 

Judge Story, in his Commentaries upon the Constitution 
of the United States, (as cited by Alvan Stewart, Esq.,) 
speaking of this sentence of this Article of the Constitution, 
says : — 

* See Constitutional Argument, on this Clause, by Alvan Stewart, Esq., in the 
" Friend of Man," October 18, 1837, from whicli our argument, on. this topic, is chiefly 
takeu, in a condensed and modified form. 



AMERICAN CONSTITUTIONAL LAW. 61 

" The other part of the Clause is hut an enlargement of the language of 
Magna Cbarta ' nee super cum ibimus, nee super cum mittimus, nisi per 
legale judicum p.arium suorium vcl per legem terra 1 — neither will we 
pass upon him, or condemn him, but by the lawful judgment of his peers, 
or by the law of the land. — Lord Coke says that these latter words. ' per 
legem terra,'' (l>y the law of the land,) mean ' by due process of law,'' that 
is, without due presentment, or indictment, and being brought in to answer 
thereto, ' by due process of law.' So that this Clause, in effect, affirms the 
right of trial, according to process and proceedings of common law.*' 

The terms employed in this Amendment are thus defined, 
and its meaning ascertained, It says that " no individual 
human being, consisting of body and soul ; no man, woman, 
or child," in these United States, or under the sheltering 
wing of its Constitution, shall be deprived of liberty, (of the 
power of acting as one thinks fit, without restraint or control 
except from the laws of nature,) without due process of law, 
without indictment by a grand jury, trial and conviction by 
a petit jury, and corresponding judgment of a Court. 

Every " individual human being, with a body and a soul ; 
man, woman, or child," within the United States, deprived 
of liberty without indictment, jury trial, and judgment of 
Court, is therefore unconstitutionally deprived of liberty. 
A " strict construction" of the Constitution can result in no 
other decision than this. For this is taking the Amendment 
according to the literal meaning of the words. 

"If this be true," says Mr. Stewart, "any judge in the United States, 
who is clothed with sufficient authority to grant a writ of Habeas Corpus, 
and decide upon a return made to such a writ, on the master and slave being 
brought before said judge, to inquire by what authority he, the master, held 
the slave, if the master could not produce a record of conviction, by which 
the particular slave had been deprived of his liberty, by indictment, trial, 
and judgment of a Court, the judge would be obliged under the oath which 
he must have taken, to obey the Constitution of his country, to discharge 
the slave, and give him his full liberty." 

Come forward, now, ye claimants of a slavery under 
" guaranty of the Constitution of the United States !" And 
come, ye claimants of "the compromises of the Constitution" 
in favor of slavery ! What say you ? Do ye still continue 
to urge the claim? If so, prepare to abide the result of 
your claims. If there are any such compromises or guaran- 
ties in the original instrument, (the Constitution of 1787-9,) 
then, along with those " compromises" or " guaranties" you 
must take the provisions of this Amendment, which (in case 
the Constitution has " recognized" any slavery at all) have 
specifically defined the slavery thus recognized, and fixed 
the bounds which it can not pass. Search now for your 
constitutional slaves, deprived of liberty, by " due process of 
law V* By personal indictment, trial, verdict, and judicial 



63 AMERICAN CONSTITUTIONAL LAW. 

sentence % Where are they % Or who is the claimant of 
such a slave 1 You claim as strict constructionists, your 
" pound of flesh, according to the bond !" Take it then, 
but take the precise, the specified pound, and take not a 
fraction more. 

More than half a century has rolled by, since this Amend- 
ment became the " supreme law of the land." But no " indi- 
vidual human being" now held as a slave has ever been 
" deprived of liberty by due process of law." No one will 
pretend this. On the principle of" strict construction" then, 
the principle of abiding by the literal meaning of the icords 
of the Constitution, the Congress of the United States are 
authorized and called upon, by the facts of the case, to pass 
a declaratory act, recapitulating the facts, and declaring 
each and every " individual human being, with a body and 
a soul, man, woman, or child," now held in bondage, in the 
United States, yet not " deprived of liberty, by due process 
of law" to he free. "All presumptions are to be made in 
favor of liberty," and therefore all who can not be proved to 
have been "deprived of liberty by due process of law" must 
be adjudged free. 

If the "peculiar" claim shrinks from this judgment, it must 
abandon " strict construction" altogether — must take its cause 
out of that Court, or wait the proper time for filing an appeal 
to another tribunal. 

More than this it must do. It must take especial care not 
to urge either its pretended " compromises" or its " guaran- 
ties" of the " peculiar" interest, either before the Court of 
'^strict construction" or any where else ! For the moment it 
does this, it endorses a principle that arms this same notable 
ffth article of Amendments, with all the formidable powers 
we have claimed for it, and there is no escape from, its grip. 
Establish, by any principle of construction, the constitutional 
guaranties and compromises of slavery in the original Consti- 
tution, and you establish both the principle and the fact that 
the United States and the Federal Government, are respon- 
sible, politically and morally, responsible to the People, to 
posterity, and to high heaven, for the continued existence of 
that gigantic crime and curse. And how shall the United 
States, and the Federal Government escape from those re- 
sponsibilities or honor them'? In no way that we can think 
of, (in such a case,) more conveniently or legally, more ef- 
fectually or more speedily, than by taking the claimants at 
their word : conceding to them, (if they will have it so,) that 
the original Constitution, contained, the "compromises" anci 



AMERICAN CONSTITUTIONAL LAW. C3 

the " guaranties" claimed — but insisting withal, that the fifth 
article of Amendments, with its paramount authority over 
the compromises and guaranties of the original instrument 
which it now modifies and changes, in virtue of its emendatory 
powers, has defined, restricted and circumscribed the slavery 
thenceforth to be compromised or guarantied, confining it 
within the constitutional limits therein specified, viz : — the 
enslavement of those deprived of their liberty, " by due pro- 
cess of law." 

Another dilemma is thus presented, on either horn of 
which, at its pleasure, the "peculiar" 'claim is at liberty to 
swing. If the Constitution has "guarantied or has 
compromised" with slavery, then it has DEFINED it : 
and the definition is recorded in this fifth article of 
Amendments, 

It will be of no use to plead in the Court of " strict con- 
struction" that such could not have been the intentions ofT 
those who drafted this clause. The question here is not what 
they intended, but what they the People have done, by adopt- 
ing that clau.se. It tells its own story and there is no escape 
from its meaning. 

Many a litigant has found, to his cost, when in Court, that 
the instrument to which he had subscribed his name, a long 
time before, expresses something that he did not intend, when 
he signed it. But the Court decides according to the ideas 
expressed in the document, and not according to his own state- 
ment of his intentions. We are in Court, now, and a Court 
too, that always sticks close to the "strict letter of the law." 

Slavery in the Territories and Federal District. 

" The Congress shall have power to dispose of, and make all needful rules 
and regulations respecting the territory or other property belonging to the 
United States, and nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States,, or of any. particular State." — Con- 
stitution U. S., Art. IV., Sect. 3, Clause 2. 

The next previous clause had provided for the admission 
of new States into the Union. One of the earliest acts of 
Congress, after the organization of the Government, under 
the Federal Constitution, was the act forever prohibiting 
slavery in the North West Territory, the- only Territory then 
belonging to the United States. And no demur has ever 
been made on the- ground tjiat Congress did not possess the 
constitutional powsr. This would seem to settle the ques- 
tion, if any question of the kind could be raised, whether 
Congress possesses power to abolish slavery, in any other,- 



64 AMERICAN CONSTITUTIONAL LAW. 

Territory or District belonging to the United States. But 
in respect to our present Territory of Florida, including the 
States formed out of the Territory of Louisiana, and the 
District of Columbia, we are authorized to occupy even 
higher ground. We present a view of this ground in the 
words of some Resolutions adopted by a Liberty Convention 
in Ohio, and afterwards at similar conventions, at Buffalo, 
and elsewhere. 

That the laws of France in virtue of which slavery existed 
in the Territory of Louisiana ; the laws of Spain in virtue 
of which slavery existed in the Territory of Florida ; and 
the laws of Virginia and Maryland in virtue of which 
slavery existed in the District of Columbia, ceased to be in 
force at the moment when said Territories and District were 
ceded to the United States, and consequently every slave 
therein, became, at that moment, free. 

That all acts of Congress, for the continuance of slavery 
in the Territories of Louisiana and Florida, and in the Dis- 
trict of Columbia, after the the cessions, became null and 
void, not only by reason of the want of power in Congress 
to pass such acts, but because they are in direct conflict with 
the fifth article of the Amendments of the Constitution, which 
declares that "no person shall be deprived of life, Liber- 
ty or property, without due process of Law," and also in 
conflict with the Preamble of the Constitution, which declares 
the establishment of Justice to be one of the chief objects 
of its formation. 

That all constitutional provisions and laws of the States 
created within the limits of the Territory of Louisiana, and 
all acts of Congress admitting such States into the Union, 
so far as such provisions, laws, or acts, authorize or sanction 
slaveholding, are also null and void, because in conflict with 
the same article of the Amendments. 

The argus eyes of the slave power and its sycophants, 
northern and southern, have never pretended to discover any 
provision, in any article, section, or clause in the Constitu- 
tion of the United States, by virtue of which Congress or 
the United States are vested with the poiver of establishing 
slavery any tuhere. " Strict construction" or any other sort 
of " construction" may search the instrument, in vain, for any 
thing of that description, or looking, even remotely, in that 
direction — to be construed ! An4 the tenth article of Amend- 
ments may remind us that the Federal Government holds 
no powers not conferred in the Constitution. We are a little 
curious to know by what arguments those who deny the 



AMERICAN CONSTITUTIONAL LAW* 65 

power of Congress to abolish slavery, will undertake to prove 
the power of Congress to create slavery. But if it has no 
power to create slavery, then slavery in the Federal District 
and Territories is unconstitutional, and the Federal Courts 
are bound, whenever a case comes before them, thus to decide. 
If slavery, in Florida and the District of Columbia, is con- 
stitutional, then slavery might be established by Congress at 
West Point, or any other spot, at which "forts, magazines, 
arsenals* dock-yards, and other needful buildings" of the 
United States, may be constitutionally " erected," and slavery 
would then be constitutional at all those places — a result too- 
absurd for belief Examine the Constitution and see if it 
be not so. 

The Constitution and the District of Columbia. 

" The Congress shall have power" — **■ to exercise exclusive legislation in 
all cases whalsdever, over such District (not exceeding ten miles square,) 
as may, by cession of particular States, and the acceptance of Congress, be- 
come the seat of government of the United States, and to exercise like au- 
thority over dll places purchased, by consent of the legislature of the State 
in which the same shall be, for the erection of forts, magazines, arsenals, 
dock-yards, and other needful buildings.' 1 '' 

" Like authority" These words are too plain to admit or 
require any explanation. Can Congress, under this clause; 
or by any other warrant, establish slavery at the navy-yard 
in Brooklyn, or at the arsenal in Springfield ? If not, then 
it can not in the District of Columbia, and slavery is illegal 
there.* 

Maintaining, as we do, the poweT of Congress to abolish 
slavery even in the States, and denying, as we do, the pre- 
sent legality of slavery in the Federal District &nd Territory 
of Florida, &c. &c, we are scarcely able to enter, with much 
interest, into the question that has been so strangely mooted 
of late years, whether Congress' has power to abolish slavery 
in the District of Columbia ! But if any one wishes to ex- 
amine that question, on the old grounds, it is pertinent to 
notice the " exclusive legislation in all cases whatsoever" which 
Congress, under the Constitution, exercises over the District. 

" Exclusive" No other legislative power on earth pre- 
tends to any legislative power over the District. Those who 

* The reader is doubtless apprised of fhe fact tliat after the cession of the District 
of Columbia by Virginia and Maryland, and- just before the appointed time for its com- 
ing into possession of the United States, the Congress of the United States enacted a 
law re-enacting, rn the lump; tfre laws* of -Maryland, for that part of the District east 
of the Potomac, and the laws of Virginia for that part of the District \ve*t of the Po- 
tomac. This act was an unconstitutional establishment of slavery iu the District, with - 
out wbicb act rite slaves would have been freed. 



66 AMERICAN CONSTITUTIONAL LAW. 

deny the power of Congress to abolish slavery in the District 
never undertake to tell us what legislature does possess that 
power. 

" Exclusive legislation" we are sometimes reminded, in 
this connection, does not mean unlimited legislation. Cer- 
tainly it does not : and this is the very reason why Congress 
does not possess power to create slavery in the District. 
But "exclusive legislation, in all cases whatsoever," docs 
mean all such just and righteous legislation as is appropriate 
and jrropcrfor all other civil governments to exercise. So that 
there is no escape from the conclusion that Congress can 
constitutionally abolish slavery in the Distiict of Columbia, 
but by affirming, (as some have done) that no government on 
earth has « right to abolish slavery ! And, with characteris- 
tic consistency, this ground is assumed by those who deny 
the inalienable rights of man by affirming that " what the 
law makes property IS property .-" so that, though legislation 
can create slavery, yet legislation can not abolish it ; in other 
words, that man possesses but one inalienable right, and that 
this is the right of slaveholding — the right of invading with 
impunity all the equal rights of his brother ! It can not be 
expected by any reasonable person that we should waste 
time in the useless attempt to reason with such, or to make 
their absurdities more manifest than they already are. 

We say nothing here, to the plea of" implied understand- 
ings" — " consent of citizens of the District," the " wishes of 
Virginia and Maryland," &c. &c, because " strict con- 
struction" rules all such considerations out of the Court. 
It will not permit the jury to hear them. In another place 
we may look at them, and a glance should suffice. If any 
one, however, would be conducted over the whole ground, 
and feel his way, step by step, let him peruse Theodore D. 
Weld's " Power of Congress over the District of Columbia, 
originally published in the New York Evening Post, under 
the signature of Wythe" — a work hitherto unanswered, and 
containing a mass of important information, along with a 
force and demonstration of argument that will sufficiently 
account for the absence of a reply. 

One or two things require to be noted, before dismissing 
this topic. There are no " reserved rights of the States" to 
be pleaded, on behalf of the slaveholders of the District. — 
Nor, (whatever may be said of the grounds we have taken 
on the clause concerning " persons held to service and labor 
in one State, under the laws thereof, and escaping to ano- 
ther"} can any persons, under that clause, be " delivered up, 



AMERICAN CONSTITUTIONAL LAW. C7 

©n the claim of the party to whom such service or labar may 
be due," in the caseof such as, instead of escaping to another 
State, shall escape to the Federal District. That soil, at 
least, is as sacred from the pollution of legalized, constitu- 
tional slavery, as is the soil of England itself. Slaves can 
not breathe there. There is no earthly power that can, 
there, legally enslave them. The moment they touch that 
ten mile square, they are, legally, as free as the President of 
the United States himself, and can no more be lawfully en- 
slaved there, ox -carried away into slavery, or made slaves on 
leaving the Federal District, than the President can. When- 
ever law is properly administered, by a competent and faith- 
ful Judiciary, this decision will stand by the side of that of 
Lord Chief Justice Mansfield, in the case of John Somerset. 
This is manifestly true, if Congress had no constitutional 
authority to create slavery in that District, there being no 
slavery there, except by authority of Congress. But if Con- 
gress has power to create slavery there, it has power to abol- 
ish it — power to repeal the law that created it. Another di- 
lemma, for the benefit of whom it may concern. 

Restrictions on State Power. 

Hitherto- we have considered the duties and powers of the 
Federal Government, under the Constitution of 1787-9, in 
relation to the existence of slavery, whether for its guaranty 
or its abolition. We are now to inquire whether the same 
Constitution has inhibited or restricted the jwwerofihe States 
to establish or maintain slavery, by any of the specific provis- 
ions of that document. 

The explicit guaranty, by the United States, of a " repub- 
lican form of government" to "every State in thi& Union, " 
has already been noticed, along with the other responsibili- 
ties of the National Legislative. And it has been shown that 
such a guaranty is equivalent to a guaranty against slavery. 
A "guaranty — an undertaking, or engagement, by a third 
person or party, that the stipulations of a treaty shall be ob- 
served by the contracting parties, or one of them."-^- Web- 
ster's Dictionary. 

This language implies that in coming into the Union, under 
ihe Federal Constitution, the several States entered into 
certain stipulations with ecch other, that one of those stip- 
ulations was the maintenance of a ^'republican form of 
government'' and that the United States guarantied the 
due observance of this stipulation, and engaged to see 
to it, that the government of each State should be republican. 
In the very act of. ratifying the Constitution of the United 



68 AMERICAN CONSTITUTIONAL LAW. 

States which contained this clause, " every State in this 
Union" did stipulate and agree to maintain " a republican 
form of government," and did agree that "the United States'' 
shall see the stipulation, on the part of each State, observed. 

But this mention of a republican government was in gen- 
eral terms. We shall see now whether the same Constitu- 
tion imposes any particular prohibitions or restrictions upon 
the States, by provisions that go into details, and vitally 
affect the republican character of a State. 

Article I., section 10, imposes a variety of restrictions up- 
on the States — some of them incidental to their new position 
as members of a more extensive government, entrusted with 
the foreign relations of the country, its currency, its army, 
its navy, its commercial polity, &c. With these prerogatives 
of the General Government, the States were not to interfere. 
But along with these inhibitions were others, of a different 
character, and looking directly to the security of individual 
rights, the preservation of republican equality among the 
People. 

" No State shall * * * pass any bill of attainder, expose facto law, or lav/ 
impairing the obligation of contracts, or grant any title of nobility. — Art. 
L, Sect. 10, Clause 1. * 

The next clause of the same section provides that " No State shall 
keep troops * * * in time of peace, or engage in war, unless actually in- 
vaded, or in such imminent danger as will not admit of delay." 

" Attainder. — 1. Literally, a staining, corrupting, or rendering impure 7 
a corruption of blood. 2. The judgment of death, or sentence of a compe- 
tent tribunal upon a person convicted of treason or felony, which judgment 
attaints, taints or corrupts his blood, so that he can?w longer inherit lands. 
3. The act of attaining." — Webster's Dictionary. 

That which the dictionary describes as the judgment or 
sentence of a tribunal, is what the Constitution says the State 
Constitutions and State Legislatures shall not enact. Par- 
ticularly, they shall " pass no bill" — enact no statute, that does 
this thing. It may not do it, even in the case of a person 
" convicted of treason or felony." Even for those crimes, 
it may not " taint or corrupt his blood, so that he can no longer 
inherit lands." Of course it may not do this, in the case of a 
person convicted of the crime of having been born of a slave 
mother, or in the case of innocent persons, charged with no 
crime ! 

But every slave State has its bill of attainder, without which 
not a single slave could be held, in the State ; and the repeal 
of which would be the abolition of slavery. 

Every slave in America is a human being thus attainted. 
The slave code thus attaints him. It says expressly, " Slaves 



AMERICAN CONSTITUTIONAL LAW. 69 

can not take by descent." They can not be heirs. They can 
not inherit, or hold lands. They can receive and hold noth- 
ing by will or bequest. " The slave can hold no property." 

Every slave in America, not imported from abroad, (and 
such importations have been prohibited since 1S08,) is a 
slave because attainted, corrupted in blood, by the slave law. 
It is a bill of attainder running from generation to genera- 
tion without limitation or end ! The slave child follows the 
condition of the mother. " The noblest blood of Virginia 
runs in the veins of slaves," and is attainted, by this bill of 
attainder. The sons and daughters of Presidents, and Gov- 
ernors and members of Congress — the " posterity" of those 
who framed and adopted the Federal Constitution "to secure 
the blessings of liberty to themselves and (their) posterity" 
are corrupted by these bills of attainder in the slave States, 
" so that they can no longer inherit lands," or hold in legal 
possession a dung-hill fowl or a pig! The wide world 
knows all this, and no one is so stupid or so emulous of being 
accounted an ignoramus as to call it in question. Where 
then is the clause of the Constitution of the United States 
that prohibits the States from passing bills of attainder? Has 
it any efficacy, or power ] Has it any meaning ? 

" Contracts." — " No State shall pass any law * * * im- 
pairing the obligation of contracts." — Constitution. 

" The slave can make no contract." " No contract made 
with a slave shall be binding." " The slave can not even 
contract marriage." " A slave can make no bargain, barter, 
or sale." — Laws of Slave States. 

To buy any thing of a slave is a grave offense, in some of 
the slave States. 

The very words of the Federal Constitution, and of the 
laws of the slave States • are here brought into direct and 
harsh collision. What the former forbids to be done by the 
States, the latter emphatically does. 

A merchant or a ship-master visits Wilmington, North 
Carolina. He enters into the shop of a cooper. He finds 
the boss cooper apparently as white a man as himself. He 
contracts with him to put in order for shipping, a cargo of 
staves and heading he has just purchased. The job may 
amount to some two hundred dollars or more. The cooper, 
with his gang of hands, goes about the work. By contract 
he receives, fifty dollars in advance, to distribute among his 
hands, or for other uses. The next day the cooper is miss- 
ing. It turns out that he was a slave. His master has other 
work for him. He had permitted him, for a monthly sti- 



70 AMERICAN CONSTITUTIONAL LAW. 

pend, to drive his trade, for himself; but he has altered his 
mind, or a creditor has seized upon the cooper, or he is sold, 
and is on the way to Louisiana. What shall the ship-master 
do, for the fifty dollars 1 Can he claim it of the cooper's 
slave-master? No! Can he claim it of the cooper, if he 
can find him ] No ! But why not ? Because the State of 
North Carolina has " passed a bill impairing the obligation 
of contracts" — has enacted that no contract formed by the 
-.child or grand child of a slave mother, to the thousandth gen- 
eration, can be binding ! 

A slave contracts matrimony. Is the contract honored as 
binding ] No ! Because the law of slavery has impaired 
the obligation of contracts. 

A slave owner is in the habit of sending an active slave 
to market, with his produce. He is even permitted by the 
master to contract sales before-hand. You bargain with 
him for a wagon load of flour, or of bacon, to be delivered 
in three days. You bargain before competent witnesses, 
and deliver some goods or money in advance. The day 
comes, and brings the market man with his load of produce : 
but he unloads at your neighbor's door in instead of yours. 
You remonstrate, but in vain. The slave master has order- 
ed the produce delivered to pay an old debt, or (more prob- 
ably) to get a higher price, or to cheat you out of your ad- 
vanced payment which he has appropriated to himself. — 
Have you any redress % No. And simply because the 
State has passed a law, " impairing the obligation of contracts."* 

A slave bargains with his master for the price of his free- 
dom. He takes his master's written agreement signed with 
his own had. Once a year he pays him one hundred dollars, 
according to agreement, and takes his master's receipt. In 
ten years the whole payment is completed, and he asks for 
free papers. Can he demand them % No. Can he get his 
money back again % No. Do the written agreement and 
the receipts avail him any thing % No. But why not 1 
Simply because the State has " passed a lato impairing the 
obligation of contracts /" f 

Are such laws constitutional 1 If they are, what does this 
clause of the Constiiution niean? We do not stop to ask 

* The case described actually occurred at Wilmington, N. C, some year's ago, dur- 
ing the writer's residence there. The slaveholder was a citizen of high standing, in 
political life. 

t Another case, of not unfrequent occurrence. More than one fugitive slave has 
come to the North, within a few years past, with all the document* in his possession — 
the written agreement, the several receipts covering the sum stipulated, and yet has 
•been obliged to run frem the chase of blood hounds, to get his freedom. 



AMERICAN CONSTITUTIONAL LAtV. 71 

what it is north ! We are in the Court of " strict construc- 
tion" now, searching after the meaning of words ! 

" Nobility." — " No State shall grant any title of nobility." — Constitution. 

But what is a title of nobility 1 

"Nobility. * * * (Among other definitions,) * * * " Distinction by 
blood, usually joined with riches" "The qualities which constitute dis- 
tinction in rank, in civil society, according to the customs or laxcs of a coun- 
try." — Webster's Dictionary. 

" Title. — An appellation (if dignity, distinction or pre-eminence, given to 
persons, as, a duke. A name, an appellation. v ' — lb. 

" The institution of domestic slai-cry supercedes the necessity of an order 
of nobility, and all the other appendages of a hereditary system of govern- 
ment."— Message of Gov. Mc Duffle of South Carolina. 

That is to say, it answers, substantially, the same ends — is 
essentially, the same thing under another name. 

The slave State grants the " name," the " appellation" of 
slave owner. It grants unlimited powers and high " dignities" 
along with the name or " title" The " qualities which con- 
stitute" a slaveholder carry with them and " constitute dis- 
tinction in rank, in civil society, according to the customs or 
laws of (this) country." In some of the States, a man must 
"be a slaveholder, in" order to be eligible to certain offices. 
It is so far a " distinction by blood" that " white" persons 
only can be slaveholders, and children of slave mothers must 
always be slaves, and can not be slave owners. 'The claim 
is founded much on the superiority of the " Anglo-Saxon 
blood" to the " African." 

The " distinction in rank, in civil society," which the slave 
mvner holds 4< according to the customs or laws of this coun- 
try," corresponds very nearly to that of the higher castes of 
the Asiatic nations, the feudal lords or barons, in the middle 
ages in Europe, and still retained by the nobility in Russia. 
This parallel is frequently insisted on, by the advocates of 
slavery, in justification of the " institution," and in proof of 
its conservative character ; and its patriarchal antiquity. The 
very phrase — " political institution" with which it is digni- 
fied by its friends, is proof that they claim for it the honors 
of " a system, a plan of society established by law," for the 
promotion of political ends * As a political institution, a 
"system or plan of society" established by State legislation, 
it changes the whole frame-work of the government in those 
States, nay, in the United States, as a general government — 
the very thing that the clause before us was obviously framed 
to prevent. As a " political institution," it is cherished 

* See Webster's definition of an " Institution." 



72 AMERICAN CONSTITUTIONAL LAW. 

and valued and defended by statesmen who perfectly under- 
stand and admit the unprofitableness of slave labor. Like 
other political institutions of a similar character, it is wielded 
for the exclusive benefit of the privileged caste at the expense 
of all others. It operates to withdraw political power from 
the mass of the people, the laboring population, and confer 
it upon a select feiv, which is the very description or defini- 
tion of aristocracy, or government of nobles. 

" Aristocracy. — A form of government, in which the whole supreme pow- 
er is vested in the principal persons of a State." — Webster's Dictionary. 

" The supreme power" of the slave States is vested almost 
exclusively in those " principal persons of (the) State," the 
slaveholders, as has been shown in another connection, This 
privileged class of 250,000 — this " peculiar" " order of no- 
bility" that governs the slave States, constitutes but about 
one sixty-eighth imrt of the aggregate seveiiteen ijiillions of 
inhabitants of the United States. Yet this petty oligarchy 
holding its " title" to the political powers of an " order of 
nobility," by virtue of the legislation of the States wherein 
they reside, and which they control at their bidding, have 
succeeded likewise in controlling the National Government 
itself, monopolizing, almost in perpetuity, the highest offices 
in the nation, moulding the national policy and wielding the 
national resources (through the legislative, executive, and 
judicial departments) for the exclusive benefit and aggrand- 
izement of the caste, regardless, utterly, of all other interests, 
either sectional or national, whenever they come in compe- 
tition, as they can not fail to do, with the " peculiar institu- 
tion" — its stability, and its claims. All this, we repeat it, is 
done by one sixty -eighth part of our whole population — by a 
body of men whose aggregate numbers amount to little 
more than one half the number of legal voters in the single 
State of New York ! All this too, by virtue of State legis- 
lation, which if repealed or annulled, would instantly anni- 
hilate the caste itself, and revolutionize all our political affairs ! 

If this be not an " order of nobility," in what particulars 
does the definition of the thing consist ? Comparing the facts 
of the case with the definitions of our lexicographers, what 
else can we make of those facts than the veritable original 
existences, of which the ivords of the Constitution are the 
expression 1 By all intelligible apprehension or construction 
of language, does it not appear that the provision of the 
Constitution which inhibits the States from granting any 
" titles of nobility," is identical in meaning with that other 
provision which enjoins on the States " a republican form of 



AMERICAN CONSTITUTIONAL LAW. . 73 

government," and that both are equivalent to a prohibition 
of slavery ] 

It avails nothing to say that, in many particulars the <( pe- 
culiar" institution differs from the aristocracies of the old 
world. The aristocracies of Europe differ as much from 
those of Asia, as those of the American States do from both. 
The aristocracy of France differs from that of Venice, and 
both of them from that of Russia. The present aristocracy 
of Great Britain differs from that of its own ancient feudal- 
ism. But all are, alike, aristocracies, nevertheless. An 
order of " nobility" precisely upon the model either of the 
ancient feudal or modern European States, could not have 
been established in the American States, and a constitutional 
prohibition to that specific point would have been without 
meaning ; as much so as it would have been to have prohib- 
ited the establishment of the Hindoo castes, or the patri- 
archal arrangements of Melchizedek's time. Instead of this 
the Constitution selects a generic term, that includes all the 
different species. The comparison of our American " nobil- 
ity" with those of other nations and ages, would be a curious 
and an intricate one. In some particulars, the one might 
have a fair claim for the preference, and in other respects, 
the other. As a whole, it would be difficult to select a more 
odious, a more mischievous, a more anti-republican one than 
the American — none, certainly, so wicked, so cruel, so inhu- 
man, so degrading, so demoralizing. In the comparison 
with it, the system of feudalism, which in some respects, it 
strikingly resembles, and to which it is often compared by 
its friends, was magnanimous and manly. That was found- 
ed on the spirit of military adventure — this, upon cupidity 
and meanness. The "chivalry" to which our American 
nobility of woman-whippers lay claim (thereby asserting 
their prerogatives as feudal chieftains or barons) is a quality 
which the semi-barbarous " nobility" of ancient Europe re- 
ally possessed. They did not drive a nefarious traffic in the 
sinews and souls of their own children. They did not sell 
infants at auction by the pound. The serf was attached to 
the soil, but he was not an article of commerce, a chattel 
personal. The peasantry were not degraded by the inca- 
pacity to contract marriage, to live in the family relation, to 
possess some articles of property, and even to hold lands 
under a certain tenure and for services rendered. And they 
freely uttered their thoughts. If degraded, the serf was a 
degraded man, and not a mere thing. He was not mana- 
cled and driven to his daily task by a driver. So far from 



74 AFRICAN CONSTITUTIONAL LAW. 

being prohibited to bear arms, one of his avocations was 
that of a soldier ; he was relied upon for his country's de- 
fense instead of being guarded by a patrol— the main tie 
that bound him to his master, was his relation as a soldier, 
to his chieftain, (whose family name he sometimes bore,) and 
to his "clan" in whose fame and triumphs he had a share. 
The feudal system, therefore, as a political arrangement, did 
little to degrade the masses under the heel of a caste, in the 
comparison with the slave system. If it degraded industry, 
it was not so much because it made labor the badge of ser- 
vility, as because it inspired those who should be laborers 
with the ambition of military renown. Such a system would 
less violently and rudely clash with the aims and arrange- 
ments of a free republic than the slave system. In other 
words, it would be less aristocratic, would establish an order 
of" nobility" of a mitigated character, less obnoxious to the 
charge of subverting the liberties of the people. 

" S er f- A servant or slave employed in husbandry, in some countries at- 
tached to the soil and transferred with it."^- Webster's Dictionary. 

li Villein, or villain. In feudal law is one who holds lands by a ba~se or 
servile tenure, or in vi/lenage." — lb. 

Villanage or villenage. 1. The state of a villain ; base servitude. 
-2. A base tenure of lands ; tenure on condition of doing the meanest servi- 
ces for the lord." — lb. 

"Feudalism. The feudal system; the principle and constitution of 
feuds, or lands held by military services. "—lb. 

The feudal " chief" or " chieftain" was the commander 
or head of a troop of serfs — or over a " clan" composed of 
such. " Chieftainship, or chieftainry" was " the government 
over a clan." — Vide Webster. The feudal chiefs were 
sometimes called " barons," and the word baron, accord- 
ing^ Webster, is "a title of nobility." The States are 
inhibited, by the Constitution, from granting "titles of nobil- 
ity!' A " serf" is a sort of " slave," and his master is a 
" lord." 

Can any one doubt that the adoption of the feudal system, 
by one of the States, would be a breach of this provision of 
the Constitution 1 And if so, by what construction of the 
language employed, can we make it appear that the still 
more despotic and aristocratic system of American servitude 
is not also a breach of that same provision % If the lesser 
would be, why not the greater 1 

A comparison of our American " nobility" with that of 
civilized modern Europe ; and of American slaves, with Eu- 
ropean peasantry, would exhibit contrasts still more striking. 
The distinction now existing between nobles and common^ 



AMERICAN CONSTITUTIONAL LAW. 75 

alty in England, in the comparison with the ancient distinc- 
tion between barons and serfs, has almost melted away ! 
How manifestly then do our American slaveholders consti- 
tute a more despotic specimen of " nobility" than the nobil- 
ity of Europe ! 

The only remaining question is, whether this provision of 
our Constitution retains any meaning, and if so, what that 
meaning can be ? If it can not protect us from the most 
unmitigated of all aristocracies, from the most absolute and 
irresponsible of all orders of " nobility," from what aristoc- 
racies, or from what order of nobility can it protect us % 
And how can it do this % 

" War." "No State," (says the Constitution,) shall 
" keep troops in time of peace, or engage in war, unless 
actually invaded," &c, &c. 

" Civil War. A war between people of the same State or city."— 
Webster. 

Have the States a right to make war upon " one half" of 
their own "citizens?" Are the slave States, as a matter 
of fact, in a state of war ? If they are, what has become of 
the constitutional provision that forbids it 1 If they are not y 
by what authority, under the Federal Constitution, do they 
keep up their " armed troops," their military " patrols" " in 
time of peace V What right have they to authorize the 
scouring of the country, by armed troops with rifles, pis- 
tols, and other military weapons, (to say nothing of blood- 
hounds,) to hunt down and shoot, without judge or jury, a 
portion of the people, for no fault, but a desire to " secure 
for themselves and their posterity, the blessings of liberty ]" 
What right have they to pass " acts of outlawry" against the 
laboring people, for no crime but refusing to labor without 
wages, or for the misdemeanor of visiting their husbands 
and wives, their children or parents, or seeking a residence 
with them % Have the States a right, under the Federal 
Constitution, to wield military force for objects like these ? 
If they have, what is the meaning of the constitutional inhi- 
bition just quoted ? And by what rules of interpretation 
shall that provision be so construed as to prohibit any other 
species of war, or any other State arrangements for maintain- 
ing armed forces in time of jwace / In another connection 
we have shown that the " suppression of insurrection," and 
the " execution of the laws," do not call for any military de- 
monstrations, nor authorize them, in such cases as those 
now under review. 



76 AMERICAN CONSTITUTIONAL LAW. 

Another constitutional provision requires a moment's at- 
tention in this place. 

" The citizens of each Stale shall be entitled to all the privileges and im- 
munities of CITIZENS, in the several States."— Article IV., "Section 2, 
Clause 1. 

But many of the " citizens" in some of the States, are 
free people of color. They are recognized as citizens by 
the Constitutions and Laws of the States wherein they re- 
side. Large numbers of them are legal voters and vote at 
Presidential as well as State elections. They are eligible, 
and are sometimes elected, to office. A colored man has 
been a member of the legislature of Massachusetts. 

Now the laws of all, or nearly all the slave States, or the 
regulations and ordinances of cities within those States and 
under State authority, are in direct violation of the above 
provision of the Constitution, so far as free citizens of color 
are concerned. They can not visit the slave States without 
being subjected to violations of their rights as citizens, by 
the public authorities of those States. If they visit the 
Southern sea-ports in coasting vessels, as seamen, they are 
seized and put in prison, for safe keeping, till the vessel is 
ready to depart. This is a fact of common and general 
occurrence, and if the colored citizens were ship-masters, 
supercargoes, or ship-owners, the law would equally apply 
to them. Any such citizen of a free State, visiting a slave 
State, is liable to be seized on suspicion of being a fugitive 
from slavery, thrust into jail, and unless able, (under such 
disadvantages,) to make satisfactory proof of his freedom, 
sold into perpetual slavery, attainting his posterity forever, 
under the great Southern "bill of attainder" FOR THE 
PAYMENT OF HIS JAIL FEES ! [Strange to tell, the 
laws and the usages of the Federal District itself, under 
" exclusive legislation of Congress," and under its eye, con- 
forms to this general law of slavery in the States, on the 
plea that comity to the States requires it, and that in no other 
way can " the peculiar institution" be preserved !] Thus 
complete are the triumphs of the slave power over the plain- 
est and most pointed prohibitions of the Federal Consti- 
tution. 

The time would fail to point out all the ways in which 
the rights of ''white citizens of the free States secured under 
this clause, are violated by the action of the slave States. 
At this moment, there are thousands and tens of thousands 
of citizens of the free States, including many of their most 
estimable inhabitants, and not a few gentlemen of literary 



AMERICAN CONSTITUTIONAL LAW. 77 

distinction and high station, ministers of the gospel and 
statesmen, who can not, with safety to their persons, visit 
large portions of the slave States. In some of those States 
they Would encounter enactments for the capital punishment 
of those who should have spoken or written against slavery. 
In none of them, perhaps, Would they be secure of protection 
from the summary vengeance of "Lynch law" — and in 
some cases, they would be dependent for that protection, on 
the State authorities that had demanded of Northern Gov- 
ernors the delivery into their own power of white Northern 
citizens, to be tried under slave laws, for the crime of writ* 
ing, even in a free State, against slavery — authorities too, 
that had demanded Northern legislation against freedom of 
speech and of the press— authorities that had offered large 
rewards for the felonious abduction, in the free States where 
they resided, of free white citizens, for the same crime of 
writing against slavery ! 

Is any more evidence needed, that this constitutional pro- 
vision is, with impunity, violated, and made of none effect, 
by the action of the slave States'? 

And all this be it remembered, is in harmonious keeping 
with the common and prevailing expositions of the Constitution 
which make it a " guaranty" of slavery or a " compromise" 
with it, and therefore a crime or a misdemeanor for any sub- 
ject of the Constitution to oppose slavery, the sacred object 
of constitutional protection ! 

The " Summing; up." 

1. In this chapter we have examined, upon the princi- 
ples of " strict construction," those provisions of the Consti- 
tution that have been held to involve a " guaranty" of slave- 
ry, or its tolerance by " compromise," and we claim that, on 
those principles, no such guaranty or compromise can be 
proved. 

2. On the same principles, we have considered other 
portions of the Constitution, which we claim to have proved 
inconsistent with the existence of slavery in the States, and 
to require and authorize its abolition, by the Federal author- 
ities, judicial and legislative. 

Let the supposition now be made, for the argument's 
sake, that we have failed to prove what we claim to have 
proved, under this second head. It might still be true that 
no "guaranty" or "compromise" in favor of slavery, on the 
principles of strict construction, could be proved. This 
would leave the " peculiar" institution without the benefit 



7S AMERICAN CONSTITUTIONAL LAW. 

of a national guaranty or even a corn-promise, in, its favor. 
And from that circumstance we could deduce an argument 
not very different in its practical results from the one now 
reached. Remove from slavery the support it derives from 
the Federal Government, and it speedily falls. And besides, 
in the absence of any guaranty or compromise in- its favor, 
what consideration of justice or policy could forbid the Fed- 
eral Government to abolish it ] 

We will now vary the supposition a little. Let it be as- 
sumed for a moment, that the Constitution,, by the principle 
of "strict construction" has been found to conflict with itself 
— that while on the one hand, it contains some provisions in 
favor of slavery,. on the other hand, it contains some provi- 
sions against it. Not a few have believed this to be the/act, 
and they have been puzzled and perplexed with the sup- 
posed phenomenon, and have solicitously asked how such 
a Constitution could be administered. Others have supposed 
that each feature and provision of it, whether/or, or against 
slavery, was to be- carried into effect, in its place, however 
conflicting in their results ! On this point we have a thought 
or two to suggest. 

"Strict construction" has nothing to do with the task of 
reconciling inconsistencies and contradictions in a written 
document. It can only expound its several parts by the 
help of its grammar, its lexicon, and the current use of the 
terms and phrases, according to the accredited literature 
within its reach. When it has done this, its functions are 
fulfilled. It is neither a< legislative, nor yet an executive 
powei*. It is simply judicial, and its judgment is guided 
exclusively by one rule, namely, the dead letter of the ivords. 
It can not, like other tribunals, inquire after the spirit — the 
main scope, thegrand design of the instrument, and make ita 
minuter details bend into consistency with that, or give way 
to it. If the Constitution by the strict letter, has provided 
for the establishment of justice and the robbing of hen-roosts 
— if it has enjoined the preservation of liberty for ourselves 
and posterity, and the seizure and enslavement of every 
sixth man, woman, and child among us, if it has made it the 
duty of Congress to provide for the general defense, and to 
convert one half our citizens into enemies, if it has guaran- 
tied a republican form cf government and has guarantied the 
perpetuity of a ruling oligarchy, if it requires us to guard 
the President's house from all danger, and to put five tons 
of Dupont's best gunpowder under it, and light the dry 
match that leads to it, "strict. construction" with. due gravity 



AMERICAN CONSTITUTIONAL LAW. 79 

and composure records it all, and reads off its record with- 
out a stammer or a changed; muscle. That is its verdict. 

But what shall the executive power do with it ] Do 1 
Why do nothing at all, of course, until impossibilities cease 
to be such. Let it rob the hen-roosts, according to law, and 
by judgment of Court, but take care to do it only ichen, and 
ecu it can be done, according to law, that is, in accordance 
with "justice /" Let it seize and chattehze its prescribed 
j^roportion, of our citizens, only taking care to do it in such 
a manner as to " secure the liberty" of all our citizens and 
" their posterity" — let it convert one half its citizens in one 
half of the States into enemies, but in such a way as to 
"promote the general welfare, and provide for the common 
defense" — let it " guaranty" or tolerate by "compromise" a 
ruling oligarchy of 250,000 men, to control seventeen mil- 
lions, whenever it can be done. in consistency with a "repub- 
lican form of government," and without any "bills of attain- 
der" or laws " impairing the obligation of contracts" by the 
authorities of the States. And let it blow up the President's 
house with gunpowder, whenever it can be done with per-, 
feet safety to that edifice ! This is all that " strict con- 
struction" can award, or authorize to be dene, so far as 
the " peculiar" claim is concerned, and for the plain reason 
that one provision of the Constitution is as precious in its 
eyes as another, and each must stand valid upon the inde-. 
pendent power of its own immaculate tcords and syllables !' 

For illustration's sake, let the slave power, stand before 
the Court, in the pqrson of Shakspeare's. relentless Jew, 
Shylock, demanding his pound of flesh, from the Christian, 
merchant of Venice,.to be cut out of his very vitals, "accord- 
ing to the bond!" The plea was a "strict construction" 
plea, and the Court was a " strict construction" Court. The 
sentence accordingly had to be rendered in favor of the 
plaintiff! The pound of flesh was his " dice," and he might 
cut it out where he pleased ! " A Daniel come to judgment /" 
triumphantly exclaims the revengeful Jew, as he whets his 
murderous knife for the slaughter " according to law!" 
But hold ! rejoins the Judge. " O w jwund" is the judgment 
of the Court "according to the bond." At your peril, cut 
not a fraction less or more ! And again. Another statute, 
says the Judge, provides that if a Jew do shed one drop of 
Christian, blood, his life shall pay the forfeit ! At this, the 
Jew lets drop hie knife, and offers to withdiav; his claim, 
and leave the Court. But hold! again, exclaims the "strict 
qenstruction" Judge. Another law provides that i£ a J&m 



80 AMERICAN CONSTITUTIONAL LAW* 

conspires against the life of a Christian, that Jew shall die,> 
and his estate be confiscated unto the State of Venice ! 
Thou, Shylock, hast conspired, in open Court, against this 
Christian's life, and now* the sentence of this law must rest 
upon thee! "A Daniel come to judgment" '-^a thousand 
voices respond; "A Daniel come to judgment ! I thank 
thee, Jew, for learning me that word /" 

If " strict construction" could award to slavery what it 
claims under the Constitution of 17S7-9, the return of fugi- 
tive slaves, the apportionment of representation upon the 
basis of slavery, the twenty years' tolerance of the African 
slave-trade, the quelling of refractory slaves by the national 
arm, the "reserved rights of the States" to fatten upon their 
pound of human flesh "according to the bond" — of what 
earthly avail could be the verdict in favor of those claims, 
so long as it must accompany another verdict, affirming the 
right and the duty of the Federal Government to " establish 
justice," " secure the blessings of liberty" and " provide for 
the common defense V 

We may understand, by this time, the result, (not to say, 
here, the absurdity,) of supposing the Constitution to contain 
provisions in favor of slavery, and provisions to " secure 
the blessings of liberty." If it be so, and if " strict con- 
struction" must thus determine, why then, it must determine, 
in effect— for it must follow — that the constitutional provi- 
sions in favor of slavery can be of no benefit to the claim- 
ants. The verdict they may have, and welcome. But the 
uses for which the verdict was sought, can not be reached, 
so long as the other — the conflicting provisions of the Con- 
stitution remain. 

In no way then, can any available verdict in favor of the 
slave claim, be obtained, but by making it appear that all 
the provisions of the Constitution are in harmony with the 
slave system ; that while some of them' are distinctly in its 
favor, none of them are decidedly against it. But this can 
not, with any show of decency, be pretended. And of 
course, the "peculiar" claim falls to the ground, even if it 
were so, that the argument of this chapter had not been fully 
sustained — which we do not admit. 

Returning from this digressive supposition, (which we 
have made for the beneiit of those who are inclined to split 
in two, with their convenient beetle and wedges arbitra- 
ment, every disputed question,) we insist that in the Court 
of " strict construction" the Constitution of 1787-$ has 
been found to contain no guaranties or compromises in favor 



AMERICAN CONSTITUTIONAL LAW, 61 

of slavery, but a number of explicit provisions against it, 
fully authorizing the exercise of the Federal Power for its 
overthrow. We are now ready to meet the " peculiar" 
claim, at that other tribunal to which it has our leave to ap- 
peal. In our next chapter we shall see whether " the spirit 
of the Constitution'* is more favorable to slavery than its 
letter. 



CHAPTER IIL 
"SPIRIT OF THE CONSTITUTION." 

The Constitution of 1787-9. Considered in the light of 
its spirit, its objects, its purposes, its principles, its aims. 

1. Preliminaries — '"Spirit of the Constitution" defended — Its province 
and authority as a rule of construction— An obvious but neglected distinc- 
tion. 2. Spirit of the Constitution, as manifested by the instrument itself — 
by its Preamble—by its grant of powers— by its construction of the Federal 
Government — by its care of personal rights — by its provisions hostfle to slave- 
ry — Spirit of the Preamble— Spirit of the powers conferred — Structure of 
the Federal Government— Security of personal rights — Provisions hostile "to 
slavery — Affinity with Common Law— Specimens of Common Law — Its pow- 
ei. 3. Spirit of the Constitution, as attested by History, by civilians, and 
jurists — Extent of the National Power. 4. The Constitution construed— 
The "spirit of the Constitution" on the wool-sack. 5. Special pleadings, 
their fallacv. 

SECTION I. 

PRELIMINARIES. 

There are but two different methods, or rules of construc- 
tion, by which the meaning of a written document, like our 
Constitution, may be interpreted and explained. The one 
refers us to the letter — the other, to the spirit. Having 
attended to the former, we come now to the latter. We open 
our eyes upon a wider field, and a more attractive one. A 
few particulars must be premised, and "the rules of the 
Court" understood. We are to try the cause by another set 
of maxims, now. 

1. The language of the Constitution is not to be excluded 
from the present inquiry, though it is not exclusively to be 
depended upon, as it was at the lower Court. At the pre- 
sent Court, the words used in the document, are admitted as 
witnesses, but other witnesses are admitted along with them. 

2. The prevailing spirit, the general scope, the leading 
design, the paramount object, the obvious purpose of the 

6 



82 AMERICAN CONSTITUTIONAL LAW. 

instrument, constitute the first the chief point of attention,. 
If any minor objects, collateral interests, incidental details, 
local designs, temporary arrangements, or doubtful and dis- 
puted provisions present themselves, alL these are to be. 
grouped together, as constituting secondary topics of inquiry. 

3. The latter, or secondary class, are in the next place, to. 
be disposed of, in the light of the former, or primary; are. 
to be construed in such a. manner as not to conflict with, or. 
thwart them, or else they must be set aside, as inexplicable, 
impracticable, contradictory, or suicidal. Otherwise, very 
manifestly, (in, case of discrepancies, and contradictions, to, 
which all the written instruments of fallible men are subject) 
there will be to be witnessed, the sacrifice of the erevailjnq-; 
spirit and paramount objects of the instrument to petty, 
interests and, absurd details, or else we. shall be obliged to 
see the Constitution, stultified by its palpable self contradic-. 
tions and impracticabilities, precisely as (under a similar sv/p-. 
jwsition) upon the. principles of "strict construction" we have, 
already seen, done. 

In other words, we should be driven back again, to that; 
s^ine Court of "strict construction" whose verdict and judg-. 
ment we have already obtained, or to no. construction, at alb 
For the very notion of ' " construction^ supposes that something. 
needs to be explained and determined, that had seemed anoma- 
lous, obscure, or doubtful. Construction, moreover must 
proceed by some rule. And to say that the " spirit of the 
Constitution"; — in distinction from its dead letter, must 
furnish that rule of construction, is the same thing as to say 
that the spirit of the Constitution must control and govern 
that construction, so that every thing apparently conflicting, 
with the spirit of the. Constitution must either be so under- 
stood as to agree with it, or else be set aside, to give place for 
it. To demur against this would be to appeal from the "spirit- 
of the Constitution" to something else. Anil if neither the. 
letter nor the spirit of the Constitution can guide us, it be- 
comes a nullity. 

4. In determining either, the general spirit of any written, 
instrument,-or the meaning and intent of its particular details 
and specific provisions, a distinction is to be preserved be- 
tween, the spirit, design, or intentions of the principal party 
or parties interested in the document, who sign and seal it; 
for ratification, as being their ou;>l act, ajid the spirit, design 
and intend of the persons employed to draft and prepare 
such an instrument, including, (it may be). the spirit, design 
and intent oC a minority of ihe persons concerned, acting 



AMERICAN CONSTITUTIONAL LAW. S3 

with the draftsmen, in distinction from the main body con- 
cerned. The design of the former instead, of the latter is 
the main thing to be ascertained. The testimony of the 
latter to the designs of the former, is to pass for what it is 
worth, in connection with other testimony, and no more. 

Thus, in a will r the main thing is the design of the testa- 
tor : — this is not to be confounded with the design of the 
penman of the will, closeted with a few of the heirs. The 
design of the parties to a written agreement, (or the main, 
body of them, where large numbers are concerned,) is to be 
held quite distinct from the designs of the men employed to 
draw up the paper, in connection with a few others who may 
be near them. And " TVe, the people of the United States" 
who adopted the Constitution, and whose act and instrument 
it is, are not bound to concede that our design, in adopting 
and maintaining it, was, of necessity, identical with what 
may be proved to have been the design of the persons, or ^ 
portion of the persons, we employed' to prepare it for us. 
What the Convention of 17S7, or a portion of it, intended to 
effect by the Constitution, is not to be confounded with the 
designs, especially the paramount object of THE PEO- 
PLE who adopted it. The objects of the Convention, or 
members of it, may deserve our attention, and their testi- 
mony to the spirit of their times, may command respect. 
But their intentions are not to be substituted for the intentions 
of THE PEOPLE, or confounded with them. Nor are the- 
intentions of a mere fraction, an oligarchy of the people, to 
pass for those of the people themselves. 

With these needful memoranda, to prevent our confound- 
ing things that are radically distinct from each other, or put- 
ting them in places where they do not belong, we proceed 
to our inquries* 

But how shall the "spirit of the Constitution" be ascertain- 
ed 1 — First, by an inspection of the document itself : — second, 
by such external evidences as may present themselves. 

SECTION II. 

The "Spirit" manifested by the Instrument itself. 

"Even a child is known by his doings." The spirit and 
temper of every man is apparent in his deportment and 
methods. The implements invented by men reveal the spirit 
in which they were conceived' and framed, by the general 
purposes, whether of utility or of mischief that they were 
evidently adapted to subserve. No one need mistake a plough 
hr. a. military weapon, nor a "field piece" for an. utensil oi" 



84 AMERICAN CONSTITUTIONAL LAW. 

husbandry. The spirit and design of every piece of ma- 
chinery is indicated . by its form and structure. It may be 
perverted to unsuitable purposes, though made with a wise 
and benevolent design, and it may bear marks of having 
been wrenched and injured by the absurd process. By 
these common sense rules, let the "spirit of the Constitution" 
be tested. 

"Spirit" of the Preamble. 

The strict letter of the Preamble has been examined, and 
found hostile to slavery. And wherein can its " spirit" be 
distinguished from its letter ] If in any thing it is in this : 
that the "spirit" of the paragraph, is, if possible, still more 
emphatically and unmistakably belligerent in its aspect, 
against slavery and imperative in its demands for its over- 
throw. If the claimant of constitutional slavery, in the Court 
of "strict construction," should have adventured to perk 
himself upon technicalities, and demand that " slavery" and 
its "abolition" should have been distinctly specified by name 
in the Preamble, in order to have made out a warrant for the 
congressional abrogation of the slave laws of the States, there 
can be no room for any suggestion of the kind, here. We 
are not at the Court of "strict construction" now, nor tram- 
melled by its narrow rules. We rise from the letter to the 
spirit — from the mere words, to their fullest comprehension 
and extent. We recognize here, in addition to the mere 
language, the spirit that evidently breathes through that lan- 
guage, and moves and refreshes our inmost souls. We claim 
that the "spirit of the Constitution" speaking through this 
Preamble declares, for itself, its high aims and intents ; that 
it speaks out in the authoritative voice of lata : — that it utters 
no rhetorical flourish : no canting profession. We claim 
that each and every specification in the Preamble, is a defi- 
nite provision of the "spirit of the Constitution," as truly 
so as the clauses that tell how the judges of the Federal 
Court shall be appointed, and the votes cast for President 
and Vice President. We claim that "the spirit of the Con- 
btitution " enjoins on the government it creates and defines, 
such legislative, judicial, and executive action, as shall truly 
and effectually " form a more perfect union, establish just- 
ice, ensure domestic tranquility, provide for the common 
defense, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity." And 
no one doubts that this would include the abolition of slave- 
ry. Whoever may carp and cavil about technicalities and 



AMERICAN CONSTITUTIONAL LAW. 85 

words, no one with " the spirit" of a man in him will deny 
that "the spirit" of this Preamble requires of the Govern- 
ment created by it, the overthrow of slavery among "the 
People of the United States." 

"Spirit" op the Powers conferred. 

And this is still further proved by the ample powers be- 
stowed upon Congress, to carry the declared objects and 
provisions of the Constitution into effect — to "make all laws 
necessary and proper" for that purpose. — [Art. I. Sect. S, 
Clause 17.] Had the "spirit" of the Constitution even ap- 
jxirently failed to clothe the Government of its creation, the in- 
strument of its high purposes, with the requisite powers to do 
the things declared to be the main object of the Constitution, 
there might have been some apparent ground for a doubt. 
But certainly there can be no rational or magnanimous 
doubt, now. When a parent charges a child with the trans- 
action of a certain piece of business, declaring with precis- 
ion and emphasis, the main objects he wishes to have him 
"secure" and then actually puts into his hands all the needed 
implements for the task, including his own well executed 
power of attorney authorizing him to act in that precise di- 
rection, what candid man could doubt that the " spirit" of 
that parent and of his instructions was sufficiently revealed 
by these acts ? The Constitution, as the parent of the 
Federal Government, has directly and explicitly declared 
the main work and business of that Government, in the speci- 
fications of the Preamble. Then in the clause above cited, 
the parent puts into the hands of the child his "power of 
attorney" fully vesting him with power to do the work de- 
scribed. How preposterous, after all this, to doubt, either 
the legal authority of the child to do the very errand he was 
sent upon, or the " spirit" of the parent's instructions ! 

If the positive and unequivocal declaration, by the Con- 
stitution, of its MAIN OBJECT in establishing the Federal 
Government, can not be understood to be binding, what patt 
of the Constitution can be held to be binding ] And if that 
declaration of its main object, thus connected with the expli- 
cit grant of the powers necessary for its accomplishment, 
can not reveal the "spirit of the Constitution," in what pos- 
sible way could it be revealed ] 

To say that it should have been revealed by the technical 
terms " slavery" and "abolition" would be the same as to say 
that the Constitution should have been a statute book. 
It would be saying, in effect, that the " spirit of the Consti- 
tution" can reveal to us nothing, and that we must go back 



86 AMERICAN CONSTITUTIONAL LAW. 

to the dead letter and to "strict construction" for all our light 
on the subject ! More than all this, it would be to deny that 
even strict construction could guide us — for the words "slave- 
ry" and its "abolition" are neither more plain nor emphatic, 
than the words injustice and justice, and a "strict construction" 
of the former could not be more explicit than a strict con- 
struction of the latter. 

Men may say, if they please, that the letter of the New 
Testament does not abolish slavery, though such ; a statement 
would not evince a very minute or extensive acquaintance 
with the power of human language, the meaning of words. 
But very few are so hardened or obtuse as to deny that the 
"spirit" of the New Testament abolishes slavery. It is 
scarcely less evident that the "spirit" of the Federal Con- 
stitution abolishes slavery, or at least, authorizes and requires 
the Federal Government to do so. 

"Spirit of the Constitution," As revealed in the structure 
of the Federal Government. 

The "spirit" of every Constitution of civil government 
is indicated by the very frame work of the -government it 
creates or authorizes. The "spirit" of the French Consti- 
tution is seen in the French Government. The "spirit" of 
the British Constitution is seen in the distinctive features of 
the British Government. If the "spirit" of any Constitution 
of government be monarchical, the government will be es- 
sentially monarchical. If the "spirit" of the Constitution 
be aristocratic, the structure of the government will be aris- 
tocratic. If the "spirit" of the Constitution be democratic, 
the form of the government will be democratic. And if 
the "spirit" of the Constitution partake of a mixture of 
these three elements, the form of government, will exhibit 
a like mixture. If the " spirit" of any Constitution be "pro- 
slavery" that spirit too, will be revealed in the structure of 
the government. Let the "spirit" of the Constitution be 
tested by this rule. 

In what particular does the structure of the Federal Gov- 
ernment betray the pro-slavery "spirit" of the Constitution 
that gave birth to it 1 Wherein does it establish, or even 
recognize that "peculiar" caste that now claims its sanction 
and its guaranty 1 In what part of the instrument do you 
find any mention, either of slavery, or of slaves — of" white" 
citizens, or "people of color ?" In a former chapter we have 
shown that not even the condition exclusively, or distinctively 
of the slave, is described in the clause commonly cited for 
that purpose. 



AMERICAN CONSTITUTIONAL LAW. 87 

No distinction of color, or of race, or parentage, is specified 
in the Constitution, among the qualifications, either of voters 
under the Constitution for the highest officers of the Gov- 
ernment, nor among the qualifications of the officers them- 
selves. There is ndthing in the Constitution that prevents 
negroes from voting for President Vice President, and 
members of Congress, on the same level with white citizens, 
and in many of the States, they do vote for those officers. 
There is nothing in the Constitution that disqualifies a negro 
from holding any office under the Federal Government, from 
the highest to the lowest, civil, military, legislative, judicia- 
ry, or executive. A negro may be constitutionally appointed 
Chief Justice of the United States, or Minister Plenipoten- 
tiary to any foreign Court. If the people of any congres- 
sional district in this Union should choose a negro to represent 
them in the House of Representatives of the United States, 
he would be constitutionally entitled to a seat there. If the 
legislature of any State in this Union should select a negro 
to represent the State in the Senate of the United States, the 
Federal Constitution secures him a seat there, on an equal 
footing with a Webster, a Clay, or a Calhoun. And if the 
People of the United States or a majority 'of them, (the ma- 
jority of the people of the thirteen non-slaveholding States, 
for example) should choose a full blooded American born 
negro, to be President of the United States, he would be the 
constitutional President, holding the same station and wield- 
ing the same powers held and wielded by a Washington, a 
Jefferson, or a Madison. 

This feature of the Constitution is the more remarkable 
•on account of its agreement with the Articles of Confeder- 
ation that preceded it, and especially when it is remem- 
bered that in the Congress of 1778, in which those Articles 
were framed, a motion was unsuccessfully made to amend the 
phrase "free inhabitants" by inserting between them the 
word "white" — thus deliberately settling the question that 
the CASTE of COLOR should have NO PLACE nor re- 
cognition in the National "Compact." And we have no ac- 
count of any attempt in the Federal Convention of 1787, to 
^engraft upon the new Constitution, the contrary principle. 

Thus absolutely Certain is it that the " Spirit of the Con- 
stitution" is the spirit of human equality, directly and spe- 
cifically hostile to the spirit of caste, especially to a caste 
founded on the circumstance of color, of blood, of race, or of 
descent. Contrast this "spirit of the Constitution" with that 
other spirit that cries out " amalgamation" at every attempt to 



S8 AMERICAN CONSTITUTIONAL LAW. 

make the State Constitutions, even in the non-slaveholding 
States, correspond with the Constitution of the United States 
in this respect. Then say whether the "spirit of the Con- 
stitution" be not identical, in this vital particular, with that 
spirit of thorough "abolition" that is denominated the " spirit 
of fanaticism" and the "spirit of amalgamation" now! 

Who does not intuitively know that if a "guaranty" of 
slavery, or a "compromise" with it were to have been intro- 
duced into the Constitution of the United States, one of the 
most essential points, one of the most ready expedients (and 
the one least calculated to. meet with effective opposition) 
would have been the introduction of the word "white" 
among the qualifications of voters and officers ] If even this 
could not be attempted, with a hope of success, what could? 
"Who does not know that one of the highest and most diffi- 
cult points of attainment, even in an " ultra modern abolition- 
ist," a point proverbially difficult to be reached, is the point 
of harmonious affinity with the " spirit of the Constitution," 
as thus revealed ] 

The "spirit of the Constitution" utterly abjures the caste 
itself upon which the whole slave system is based, takes the 
despised negro by the hand, and seats him indiscriminately 
around the ballot box among his paler brethren, and holds 
out before him, to incite his manly emulation, the highest 
summits of official station in her power to bestow, the highest 
seats in the National Government itself. And are we to be 
told that this same "spirit of the Constitution" has "guaran- 
tied" the perpetual degradation and chattelhood of the colored 
man — .that it authorizes the hunting of him, through all the 
States in the Union, "without due process af laiu" * or jury 
trial, as though he were a wild beast, or a noxious reptile I 
Did ever effrontery itself, before adventure to urge such a 
claim as this 1 

With the feature of the Constitution just noticed, the 
whole structure and organic frame work of the Federal Go- 
vernment agrees, and without that feature that structure 
could not be what it confessedly is % and what is the pride of 
every intelligent and high minded American to represent it — 
a free Government— ^-founded on the supremacy of the peo- 
ple, the exclusion of monopolies, the annihilation of privi- 
leged orders, and the absence of caste. 

The same "spirit of the Constitution" that puts the color- 

* This one inhibition of the Constitution, by th,e bye, is. enough to settle the uncon- 
stitutionality of the Act of Congress of 1793, and of the late decision of the United 
State* Court in the case of Prigg v». Pennsylvania. 



AMERICAN CONSTITUTIONAL LAW. 89 

ed man upon a level with the white, disdaining even an allu- 
sion to any distinction between them, as the spirit that is mani- 
fested in its speaking in the name of the THE PEOPLE, 
(the whole of thorn, not a favored class) its derivation of the 
government from the people, the election of the officers of 
the government, either directly or indirectly, by the people — 
the accountability of the highest oncers to them, including 
the liability of the President himself to impeachment and 
trial, the provisions for frequently returning elections, the 
general eligibility of the people to office, without distinction 
of caste — the reservation to the people (either directly or 
through their State Governments) of all the powers not de- 
legated in the Constitution itself, These features, of the 
Federal Government, the glory and the boast of every Ame- 
rican, can not be separated from the feature that constitutes 
the same government the unalterable and uncompromising 
enemy of the cord of caste and consequently of that abomina- 
ble slave system with which that caste is identified, and by 
which it is created and preserved. 

If the " spirit of the Constitution" has provided for us " a 
republican form of government" then that " spirit of the 
Constitution" has entered into no " compromise" with slave- 
ry, and, so far from providing for any "guaranty" of slaver?/, 
has V guarantied to every State in this Union a republican 
form of government" by the definition and on the model of 
Hie Federal Government itself, a definition and a model that 
flaxes the black man on an equality with the white. 

Before dismissing this topic, it may be proper to notice 
one fact, in the structure of the Federal Government, that 
has been claimed as being friendly to slavery. The appor- 
tionment of direct taxes and representation has been consid- 
ered in the light of an arrangement granting an undue share 
of political power to the slave States, giving them an advan- 
tage over the rest, and thus holding out as it were, a premi- 
um to slavery over freedom. But the abolition of slavery by 
the slave States would greatly increase their political power, 
as they might then make citizens of all that class of their 
population, of whom they can now reckon only three-fifths, 
but might then reckon the whole. So that the present reduc- 
ed rate of three-fifths instead of the whole, has been regard- 
ed, by some, as a rebuke and discouragement of slavery, in- 
stead of a premium bid in its favor, 

This question, we have no occasion to discuss, now. We 
need not deny that the arrangement ;s unequal,, in its bear-, 
ing on the free labor States, that its operation gives the slave 



90 AMERICAN CONSTITUTIONAL LAW. 

States more power than they ought to possess, and that that 
power is wielded in support of slavery. But from this it does 
not follow that "the spirit of -the Constitution" contemplated 
this result, or could look upon it with favor. The results of 
particular business arrangements and details, are often the 
opposite of those contemplated and intended by those who 
enter into them. No one, at that time, supposed that slave- 
ry could continue to the present period, and its perpetuity- 
could not have been the object of that provision. t Could it 
even be proved that such was the design of some in the Con- 
vention, who succeeded in shaping the clause to their liking, 
it would not follow that a majority of the Convention adopt- 
ed it with that view. And if they did, it would not follow 
that THE PEOPLE (including these of the North,) far 
whom the paper was drafted, and who adopted it, understood 
and approved it, in that light, or for such an object. We are 
litigating before a Court, now, that can look beyond the mere 
words, to the " spirffi' and intent. And it would require 
strong evidence to prove that the majority of the people in- 
tended to put themselves under the control of the petty oli- 
garchy that now rules them ! Or if it were so, the " sober 
second thought" of their famous " amendments''' for the bet- 
ter security of freedom, cuts off whatever of a pro-slavery 
character might be detected in this clause of the original in- 
strument. 

And waiving even all this, we might cut the matter short by 
a dilemma that may serve to silence the claim under this 
clause. This provision either harmonizes with all the other 
features that characterize the structure of the Federal Gov- 
ernment, or it does not. If it does, it can not be claimed as a 
" guaranty" or even a ** compromise" in favor of slavery. 
If it does not, why then it becomes an eXcresence, an anoma- 
ly; and this isolated, obscure, and litigated clause, has to be 
disposed of, (like other incongruities) in the light of those 
outstanding, unambiguous, unmistakable features, by which 
"the spirit of the Constitution" is to be ascertained. This is 
the very process of construction or interpretation, by the 
"spirit of the Constitution ;" for this very purpose, we are 
now in Court, and shall proceed to cite other evidences in 
proof that the " spirit of the Constitution" is what we claim 
it to be. 

"Spirit op tjie Constitution" in its care of 
personal rights. 

The spirit of any Constitution of civil government is not 
more clearly discerned in the structure and form it gives to 



AMERICAN CONSTITUTIONAL LAW. 91 

the government itself, than in the hearing of its provisions 
'upon the security and sanctity of individual, personal rights. 
Here lies the pith and the " spirit" of civil government, after 
all. A government is good or bad, free or despotic, accord- 
ingly as its provisions are adapted, either to protect and to 
secure the rights of individual human beings, (especially those 
most in need of protection) or, on the other hand, to invade 
and trample upon those rights, or leave them insecure, or 
wink at the existence of abuses, usages, laws, and customs, 
by which those rights are taken away, denied or impaired. 

Now slavery, as it ^exists in the American slave States, is 
the most perfect possible specimen of a system, upheld by 
government, in v which all the rights of its victims are tram- 
pled down and denied, and the liberties of all others made in- 
secure. 

To learn then, whether the " spirit of the Constitution" 
•is a" spirit that can enter into a " compromise" with slavery, 
or "guaranty" its existence, we have only to learn by its pro- 
visions what value it places upon individual security — person- 
al rights. 

And here, we might cite again, the specifications of the 
Preamble, if it would not seem a repetition to do so. But 
there are minuter provisions in the instrument, that we srmst 
not overlook — provisions utterly at war, both in their letter 
and their spirit, with the usages that constitute slavery and 
that are requisite to sustain it. 

The Constitution of the United States guaranties those in- 
estimable and inalienable rights of conscience which slavery 
wholly denies its victims and can not afford to secure — does 
not permit to be exercised — by any portion of the citizens in 
those States where it bears sway. [Amendments, Article 1.] 

The Constitution provides for " the freedom of speech and 
of the press." [Amendments, Article 1.] But freedom of 
speech and of the press are not only prohibited to slaves, 
but to all who plead their cause, or disseminate the fundament- 
al principles of human rights. This is done on the express 
ground, and for the known and admitted reason that slavery 
can not exist where those rights are thus exercised and main- 
tained. 

The Constitution expressly recognizes "the right of the 
people" (without distinction of caste or color) " peaceably 
to assemble, and to petition the Government for a redress of 
their grievances," [Amendments, Article 1.] But not only the 
slave States, but the Congress of the United States, have di- 
rectly and explicitly denied the right of the slaves (the mass 



92 AMERICAN CONSTITUTIONAL LAW. 

of the laboring people in half the States) to petition Con- 
gress, they have virtually and practically denied the right of 
petition to all who petition for the abolition of slavery, and 
this has led, in one memorable instance, (the short session of 
1841,) to the suspension of the right of petition, in all citizens, 
and on all subjects, upon the good pleasure of the President, 
as indicated in the topics of his Message ! All this has been 
done on the assumption of the correctness of those prevalent 
Constitutional expositions that make the Federal Govern- 
ment the patron and the servant of the slave power. But 
since the " spirit" and letter of the Constitution are grossly 
and manifestly outraged by these proceedings, we have 
abundant evidence that the "spirit of the Constitution" and 
the spirit of slavery are antagonisms that can never be 
reconciled.* 

We must remember here, that these constitutional provis- 
sion for the security of personal freedom, are contained in 
the first article of the Amendments, and we must bear in mind 
that amendments exert a corrective and repealing power, over 
all the provisions of the original instrument which may be 
found to conflict with them. But all the specifications that 

* In further corroboration, of the fact that the commonly prevalent constructions of 
the Constitution lie at the bottom of all these assaults, in high places, not only upon 
the right of petition, but upon the right to assemble peaceably for that purpose, and 
to discuss public measures, as well as the freedom of speech, and of the press, wemak.e 
a few citations from the speeches, &c, of the constitutional expositors, so confidently 
relied upon. 

"Discussion implies deliberation, deliberation is preliminary to. action. The People 
of the North have no right to act upon the subject of southern slavery, and therefore 
THEY HAVE NO RIGHT TO DELIBERATE— NO RIGHT TO DISCUSS."-*- 
Clay's Speech, 1837. 

Fresh evidence that the prevalent expositions of the Constitution can not, with safe- 
ty be received by a free People ! The late President Harrison, in. his famous speech 
at Vincennes, May 25, 1835, and approvingly referred to, iu his letter to James Lyons, 
June 1, 1840, as containing the sentiments he still held, goes into she argument a4 
length. He first assumes that the Constitution provides for the return of fugitive 
slaves, &c. &c. He then adds : 

"Now can anyone believe that the instrument which contains provisions of thia 
kind," &c. &c, "should, at the same time, authorize (the citizens of non-slaveholding 
States) to assemble together, to pass resolutions and adopt addresses, not only to en- 
courage the slaves to leave their masters, hut to cut their throats before they do so. 
I insist that if the citizens of the non-slavcholding States ean avail themselves of the 
article of the Constitution which prohibits the restriction of speech or the press to 
PUBLISH ANY, thing injurious to the rights of the slaveholding States, that; they can 
go to the extreme I have mentioned, and effect any thing further that writing and 
speaking could effect. But, fellow citizens, these are not the principles ot! the Const> 
tution. Am I wrong in applying the term unconstitutional to the measures of the 
emancipators?" 

Gov. Marcy, of New York, and Gov. Everett, of Massachusetts, in their messages to 
the Legislatures of those States, took similar ground, suggesting the propriety of 
suppressing anti-slavery meetings and publications by law. Such are the conclusions 
deduced from the premises of a constitutional " compact," " compromise" and " guaran. 
ty" of slavery. The security of American liberty rests in the fact that the premises 
are unso«ud>. Not even the gigantic powers of John Quincy Adams have yet sufficed 
to restore the right of petition, while such constitutional expositions prevail, The 
rights of petition, free speech, and free press, would indeed be strange and incredible 
anomalies, in a government piedged to tolerate and even to sustain slavery**. 



AMERICAN CONSTITUTIONAL LAW. 03 

have ever been claimed as being favorable to slavery are 
contained in the original instrument, and not in the Amend- 
ments. So that if the Constitution as formed by the Con- 
vention of 1787, failed to breathe the "spirit" of security 
to personal rights, and of consequent hostility to slavery, 
yet the PEOPLE afterwards, took care to infuse that 
"spirit" into the organic law of their Federal Government, 
through their Amendments. 

On the same high vantage ground as " Amendments," 
overtopping and overlooking, with a supervisory eye, each 
and every one of the provisions claimed as " guaranties" or 
" compromises," by the slave power, we find likewise the 
provisions, forbidding the deprivation of life, liberty, or prop* 
erty, in the case of any "person" " without due process of 
law," (Amendments, Article 5,) securing " in all criminal 
prosecutions," the "right" of the accused to " a speedy and 
public trial by jury," &c. &c, (Amendments, Article 6,) se- 
curing the same right of jury trial " in suits at Common Law, 
when the value in controversy shell exceed twenty dollars," 
(Amendments, Article 7,) the inhibitions of " excessive bail 
— excessive fines— cruel and unusual punishments," (Amend- 
ments, Article S,) the recognition of rights in the People, not 
particularly enumerated in the Constitution, (i^mendments, 
Article 9,) the reservation to the People, (directly or through 
the States,) of powers not delegated to the United States, by 
the Constitution. Is there any thing doubtful or ambiguous 
in the " spirit" of constitutional provisions like these ? Or 
does that " spirit" harmonize with such constitutional expo- 
sitions as we find embodied in the absurd enactment of 1793, 
and the still more preposterous decision, of the Supreme 
Court, in the case of Prigg versus Pennsylvania ? Had the 
" spirit" prevailed, in that Congress and in that Court, which 
could not permit the hazard, to a citizen, of the loss of 
" twenty dollars," in a litigation, in a Court of law, without 
a jury trial, would the civilized world have been astounded 
with the spectacle of a professedly free nation, not one citi- 
zen of whom is held legally free from a seizure of his per- 
son by any individual slaveholder " without due process of 
law," and the reduction of him to a chattel personal for life, 
with the " attainder of blood" in his posterity forever, and 
all this without benefit of a jury trial? And without the 
" reserved right" either of" the People" or " of the State,"* 

* " The reserved rights of the States" are magnified into prodigies, when the 
right of the slave States to chattelize American citizens, and to send their biped blood 
hounds into every free State, to kidnap them, is to be maintained : But the " reserved 



94 AMERICAN CONSTITUTIONAL LAW. 

to interpose the protection of an act providing, in such cases,. 
a trial by jury I What says " the spirit of the Co7i&titution"' 
to questions like these 1 

There is another authoritative AMENDMENT of the 
Constitution sufficient, of itself, to annihilate whatever of the 
poison of a, pro-slavery " compromise" or " guaranty" — more 
or less virulent — might have been ambiguously smothered 
into the original " compact." In the multiplicity of our 
constitutional weapons against slavery, we had overlooked 
it while before the Court of " strict construction," in our 
second chapter.. But we must give it place, now. 

" The right of the PEOPLE to be SECURE in their PERSONS, houses, 
papers and effects, against unreasonable searches and SEIZURES, shall not 
be violated ; and no warrants shall issue, but upon probable cause, supported 
by oath or affirmation, and particularly describing the place to be searched, 
and, the persons or things to be seized." — Amendments, Article 4. 

"Whether construed by " strict construction" or standing, 
in its own light, as a specimen of the " spirit" of the Con- 
stitution itself, no provision could be more significant and 
conclusive than. this. Had it been penned with the special 
design to prevent and forever foreclose and annul any such 
legislation as the act of Congress of 1793, or to brand with 
the stamp of unfaithfulness to the Constitution such a judi- 
cial decision as, that of the United States Court, in the case 
of Prigg vs. Pennsylvania, what could have been penned, 
more to the point? " Tlie ~People" and no particular caste 
of them are to be thus secured from " unreasonable seizures." 
Yet the Act of Congress, and the judicial decision, leaves 
no class of the people " secure" from the most " unreasonable" 
and felonious " seizures''' without even the formality of any 
<f warrant" at all-in which a description of " the place to 
be searched, and the persons or things to be seized" could 
be introduced. 

To the same- purport, as indicative of the "spirit of the 
Constitution" ;ii its care of individual rights, we may cite< 
some further provisions, of. the original instrument itself. 
if The privilege of the writ of habeas corpus shall not be 
suspended, unless when, in cases of rebellion or invasion, the 
public safety may require, it." (Art.. I., Sect. 9, Clause 2.) 
But no " privilege of the writ of habeas corpus" or any thing 
else comes to the benefit of any one suspected of the crime 

rights of the States" amount to nothing at all, wheu the rights of the free States to 
protect their own citizens (hy "jury trial," by "habeas corpus," by "due process of 
law,") against unlawful seizures are to be judicially put down! Thus must it needs 
be, so long as .the present constitutional ezpositions.obtain. . A pro-slavery Constitution, j 
cou'd do uotUiug less ! 



AJHERICAN CONSTITUTIONAL LAW. 95 

of having descended from a sJave mother or of any person, 
man, woman, or child, white* or colored, whom any slave- 
holder may choose andpresume {without presentment of jury, 
or writ of magistrate) to claim and to seize as his slave I 
This, in substance, is the decision of the Supreme Court of 
the United States, under the A,ct of Congress of 1,793 ; and 
the decision and the Act are both based upon the common 
construction of the provision in the United States Constitu- 
tion, (Art. 4, Sect. 2, Clause 3;) concerning " persons held 
to service and labor." In our Chapter II, we have shown 
that the wards of this, provision, on the principles of " strkh 
construction" furnish no warrant for such an Act of Congress. 
— for such a decision of Court. Appeal has accordingly, 
been made to the "spirit of the Constitution" — forsooth ! 
to reverse the decision ! And what has "the spirit of tijee 
Constitution" to say, on this question ? How is it 1 When 
the kidnapper of the South, with his bull dogs, (biped: or 
quadruped,) come prowling, around our Northern villages 
and- hamlets, is it a " case of rebellion or mvasiort" if we re- 
fuse to submit to them, or even if we trap them, or trip up 
their heels 1 Does the " public safety require" us to be drag- 
ged away, without indictment, or "due process of law" and 
sent to the Southern rice-swamps without a jury, and without 
" the privilege of the writ of habeas corpus V Does " tha 
spirit of the Constitution" agree with this"? If it does, let 
the People understand, that they may appreciate its benefits] 
If it does not, let the "spirit of the Constitution" be better 
understood, and no longer identified with the spirit of legal- 
ized Lynch law, and made, by decision of the Supreme 
Court,, the standing commission of the man-thief, setting all 
the sacred guaranties and ; safe-guards of personal liberty, at 
defiance ! 

" The trial of all crimes except in case of impeachment, shall be by jury, 
and such trial shall be held in the State where the said crimes shall have 
been committed," &c. — Article 1IL, Sect. 2; Glavse 3; 

" Treason against the United States shaH consist only in levying war 
against them, or in adhering to their enemies, giving them aid and comfort. 
No person shah be convicted of treason unless- on testimony of two witnesses, 
to the same overt- act, or on confession in open Court. "— A rt. III., Sect, o 
Clause 1. 

The "trial by jury" is here recognized, in the original 
instrument itself. And treason is to be defined and punish- 
ed by the most liberal and lenient rules. What a contrast 
to the sanguinary and summary codes of slavery ! Exposi- 
tors of the Constitution who make it a "compromise" or a 
5 < guaranty" of; slavery, have gravely defined " treason" to. 



96 AMERICAN CONSTITUTIONAL LAW* 

consist in freedom of speech and of the press directed against 
slavery, or in discussion of its character ! At every point, 
" the spirit of the Constitution" and " the spirit of slavery" 
come in harsh collision. Who can conceive of the very 
u spirit of this Constitution" making a " compact," a " com* 
promise" with slavery-staking it by the hand — making ami- 
Cable terms with it— and signing a " guaranty" of the invio- 
lability, the perpetuity of its Lynch legislation — its enacted 
abrogation of all law — its annihilation of the same rights that 
the " spirit of the Constitution" was so solicitous to protect 1 
No marvel that those who can quote the " spirit of the Con- 
stitution" in favor of slavery, can likewise quote the spirit 
of the Saviour's golden rule, for the same purpose ! 

"Spirit" of Constitutional Provisions hostile to 
Slavery. 

Full justice to " the spirit of the Constitution" as exhibited 
by the distinguishing Characteristics of its fundamental pro- 
visions, could not be done without referring distinctly to 
those provisions which we have a right to claim as being, 
both in their letter and spirit directly levelled against the 
specific things wherein slavery consists, and providing lot 
their removal :— referring, likewise, to those specific grants, 
to Congress, of the Constitutional powers by means of what 
that particular category of evils may be removed. 

Under this head we might class some of the provisions of 
the Constitution already adverted to, particularly the pro- 
vision, (Amendments, Art. 5,) that " No person shall be depri* 
ved of life, liberty, or property, without due process of law," 
and likewise Amendments, Art. 4. Scarcely less significant, 
in their bearing upon slavery, are the guaranties of the rights 
of conscience, freedom of speech and of the press, &c. But 
we allude now, more especially, to the guaranty, to every 
State in the Union, of a republican form of government, the 
restrictions of State power inhibiting orders of nobility, oli- 
garchies, impairing the obligation of contracts, laws of attain- 
der, State wars, troops in time of peace, and withholding the 
immunities of citizens from citizens of other States : con-* 
nected as these provisions are with the conferring of ample 
powers upon Congress for regulating both foreign and do- 
mestic commerce, including the commerce in slaves, exclu- 
sive legislation over the Federal District, the needful regin 
lation and government of Territories, power to carry out all 
the provisions and objects of the Constitution, but no power 
to establish or to maintain slavery in District, Territory, or 



AMERICAN CONSTITUTIONAL LAW. 97 

elsewhere. Of the " spirit" manifested in these provisions 
there can be no rational doubt. 

It may be objected, perhaps, to our citing these provis- 
ions in proof of the anti-slavery spirit of the Constitution, 
that some of them are among the disputed points for the 
proper construction of which we are seeking, in the " spirit 
of the Constitution" (when ascertained) an umpire. So that 
we must not admit them as witnesses in a case wherein they 
themselves, are to be tried. Be it so, then, that these fea- 
tures of the Constitution are to be put on trial before the 
Court, and, as parties concerned, must not be witnesses in 
their own cause. Having a case at Court, they have 
an undoubted right to appear there, and in their own proper 
names and habiliments. If the bare announcement of their 
names, the cut of their garments, their countenances, form, 
gait, and shibboleth of speech, should reveal to the Court 
and jury their affinity with the " spirit of the Constitution" 
and dissimilarity from the spirit of slavery, why — there is no 
help for that. The old fables may represent Justice as being 
blindfold, but Judges and jurors, in this Court, are permitted 
to have eyes. 

The Spirit op the Constitution is the Spirit of the 
Common Law. 

Another internal evidence that the " spirit of the Consti- 
tution" is the spirit of Liberty, in other words, the spirit of 
uncompromising hostility to slavery, is to be found in the 
fact that it is identical in its character and arrangements, 
with the V spirit" of the Common Law, in the presence and 
at the touch of which, slavery instantly expires. 

We will, first, establish the fact that the " spirit of the 
Constitution" is identical with the spirit of the Common Law, 
and, then, the fact that the Common Law never tolerates, for 
a single moment, or under any conceivable circumstances, 
the existence of slavery. 

" The Common Law is the grand element of the United State? Constitu- 
tion. All its fundamental provisions are instinct with its spirit: and its 
existence, principles, and paramount authority, are pre-supposed and as- 
sumed throughout the whole. The Preamble of the Constitution plants the 
standard of- the Common Law immovably on its foreground : — 

" ' We, the People of the United States, in order to establish justice, 
&c, do ordain and establish this Constitution,' thus proclaiming dt 
to justice, as the controlling motive in the organization of the Government, 
and its secure establishment the chief end of its aims. By this most solemn 
recognition, the Common Law, that grand legal embodiment of ' justice.' 
and fundamental right — was made the ground work of the Constitution, and 
intrenched behind its strong munitions. The second clause of Sect. 9, Art. 

7 



9S AMERICAN CONSTITUTIONAL LAW. 

1 ,• Sect. 4, Art. 2, and the last clause of Sect. 2-, Art. 3, with Articles 7. 8, 
9, and 13 of the Amendments, are also express recognitions of the Common 
Law as the presiding genius of the Constitution." — Weld's Power of 
Congress, &,-c. page 13. 

if Who needs be told that slavery makes war upon the principles of the 
Declaration of Independence and the spirit of the Constitution, and that 
these and the principles of Common Law gravitate towards each other with 
irrepressible affinities, and mingle into one 1 The Common Laic came here 
with our pilgrim fathers ; it was their birthright, their panoply, their glory, 
and their song of rejoicing in the house of their pilgrimage. Il covered them 
in the day of their calamity, and their trust was under the shadow of its 
wings. From the first settlement of the country, the genius of our institu- 
tions and our national spirit have claimed it as a common possession, and 
exulted in it with a common pride. A century ago, Gov. Pownall, one of 
the most eminent constitutional jurists of colonial times, said of the Common 
Law — >'In all the colonies, the Common Law is received as the foundation 
and main body of their law.'' In the Declaration of Rights made by the 
Continental Congress, at its first session, in '74, there was the following reso-. 
lution : — t Resolved, that the respective colonies are entitled to the Common 
Law of England, and especially to the great and inestimable privilege of 
being tried by their peers of the vicinage according to the course of* that lair.' 
Soon after the organization of the General Government, Chief Justice Ells- 
worth, in one of his decisions, upon the bench of the United States Supreme 
Court, said, ' the Common Law of this country remains the same as before 
the revolution.' Chief Justice Marshall, in his decision in the case of Liv- 
ingston vs. Jefferson, said, ' When our ancestors came to America, they 
brought with them the Common Law of their native country, so far as it was 
epplicable to their new situation, and I do not conceive that the revolution 
In any degree changed the relations of man to man, or the law which regu- 
lates them. In breaking our political connection with the parent State, we 
did not break our connection with each other.' [Hall's Law Journal, New 
Series.~\ Mr. Duponceau, in his ' Dissertation on the Jurisdiction of Courts, 
in the United States,' says,. ' I consider the Common Law of England, the 
jus commune of the United States. I think I can lay it down as a correct 
principle, that the Common Law of England, as it was at the time of the 
Declaration of Independence, still continues to be the national law op 
this country, so far as it is applicable to our present state, and subject to 
the modifications it has received, here, in the course of half a century.' Chief 
Justice Tavlor of North Carolina, in his decision in the case of the State vs. 
Reed, in 1823, Hawk's N. C Reps. 454 , says, ' A law of PARAMOUNT 
OBLIGATION TO THE STA'lUTEwas violated by the offense— COM- 
MON LAW, founded on the LAW OF NATURE, and confirmed by REV- 
ELATION.' The legislation of the United States abounds in recognitions 
of the principles of the Common Law, asserting their paramount binding 
power. Sparing details, of which our national State papers are full, we il- 
lustrate by a single instance. It was made a condition of the admission of 
Louisiana into the Union, that the right of trial by jury should be secured to 
all her citizens — the United States Government thus employing its power to 
enlarge the jurisdiction of the Common Law as its great representative."* 
-^Weld's Power of Cong, fyc, page 14. 

Having thus identified, the " spirit of the Constitution," and 
(along with it) the " spirit" of American Jurisprudence, with 

* Another, fact, conclusive of the illegality of slavery in Louisiana, for this was equiv- 
alent to a condition that she should abolish slavery. In this particular, at all events, 
Congress seeius to have recognized its right and duty to secure to Louisiana, "a re- 
publican form, of government." — Author. 



AMERICAN CONSTITUTIONAL LAW. 99 

the " spirit" of the Common Law, we will now look at the 
bearing of this spirit of the Common Law upon the Ameri- 
can Slave System. 

Specimens of Common Law. 

"The Common Law knows no slaves. Its principles annihilate slave- 
rv wherever they touch it. It is a -universal, unconditional, abolition act. 
The declaration of Lord Chief Justice Holt, that, ' by the Common Law 
no man can have property in another,' is an acknowledged axiom, 
and based upon the well known Common Law definition of property, viz., 
1 The subjects of dominion or property are things, as contra distinguish- 
ed from persons.' " — lb. page 13. 

The following are also among the maxims of the Com- 
mon Law: 

" The law favors liberty." — Wood's Inst. Book 1, chap. I, page 25. — 
Coke's 1st Inst. Book 124, and 2d List. 42, 115. 

" The law favoreth a man's person before his possessions." — Noycs' Max- 
ims, pages 6 and 7. 

" Whenever the question of liberty seems doubtful, the decision must be 
in favor of liberty. "—Digest Lib. 50, Tit. 17, Leg. 20. 

" The law therefore which supports slavery and opposes liberty, must ne- 
cessarily be condemned as cruel, for every feeling of human nature advocates 
liberty. Slavery is introduced through human wickedness, but God advocates 
liberty, by the nature which he has given to man. Wherefore, liberty torn 
from man, always seeks to return to him, and it is the same with every thing 
which is deprived of its native freedom. On this account it is, that the man 
who does not favor liberty, must always be regarded as unjust and cruel ' h 
and hence the English law, always favors liberty." — Chancellor Fortcscue, 
de laudibus legum. chap. 42, page 101. 

" Law favoreth liberty and dower. Law regards the person above his 
possessions — life and liberty, most. — Principia Legis et Equitatis, p. 56. 

" Those rights which God and nature have established, and which nre 
therefore called natural rights, such as life and LIBERTY, need not the 
aid of human laws, to be more effectually vested in EVERY MAN, than 
they are. Neither do they receive any additional strength, when declared, 
by the municipal laws, to be inviolable. On the contrary , NO HUMAN 
LEGISLATION HAS TOWER TO ABRIDGE OR DESTROY THEM, 
unless the owner shall himself commit some act, that amounts to forfeiture." 
■ — Introduction, Sect. 2. 

" The law of nature, being coeval with mankind, and dictated by God 
himself, is of course superior in obligation to any other. It is binding over 
all the globe, in all countries, and at ail times. No human laws have 
any VALIDITY, >f contrary to this, and such of them as are valid, de- 
rive all their force, and all their authority, mediately or immediately, from 
this original." — lb. 

" The inferior law must give plice to the superior — man's laws to God's 
laws." — Noyes' Maxims. If therefore any statute be enacted, contrary to 
these, it ought to be considered of no authority in the laws of England." 

'• Usage and custom, generally received, have the force of law." — Hale's 
Hist, of Common Law, p. (it. "Because custom, derived from a certain 
reasonable cause, takes the place of law." — Littleton Lib. 2, 10. Sect. 140. 
" But when custom is adopted without reason, it ought rather to be called 
usurpation than custom." " Because, in judging of customs, strength of 
reason is to be considered, and not length of time. The reason which sup- 



LtfC. 



100 AMERICAN CONSTITUTIONAL LAW. 

ports them ought to be regarded, and not the length of time, during which 
they have prevailed." 

" Two incidents are indispensable to validity of custom or usage. 1st. A 
reasonable commencement, (for all customs or prescriptions which are against 
reason are void.) 2d. Continuance without interruption." — 2d Inst. p. 140. 

" Evil customs ought to be abolished." — Littleton 2d Inst. 2 Chap. 2, p. 
141. On which Sir Edward Coke remarks, that " every use (or custom) is 
evil, which is against reason. 

" Where the foundation is weak, the structure falls." — Noyes' Maxims, p. 
5. " What is invalid from the beginning, can not be made valid by length 
of time." — lb. p. 4. 

" The reasonableness of law is the soul of the law." — Jenks. Cent. 45. 

" This law is written upon the heart of every man, teaching him what to 
choose and what to refuse. What is written by reason in the heart, can not 
be effaced ; neither is it liable to change, either from place or time, but ought 
to be preserved every where, by all men. For the laws of nature are immu- 
table ; and the reason of their immutability is this, that they have for their 
foundation, the nature of things, which is always and every where the same." 
—Doct. 8? iitud. p. 2. 

" Against these, there is no prescription, or statute, or usage : and 
shoukfany be enacted, they WOULD NOT BE STATUTES, or usages, 

but CORRUPT CUSTOMS." — lb. p. 5. 

" If any human law shall allow or require us to commit it [murder, men- 
tioned by way of illustration,] we are bound to transgress that human law, 
or else we must offend both the natural, and the divine."— Blackstone. 

" If it be found that a former decision (respecting a point in Common Law,) 
is manifestly absurd and unjust, it is declared, not that such a sentence 
was bad law, but that it is not law." — lb. 

" It is generally laid down that Acts of Parliament, contrary to reason 
are void." — lb. 

" Prof. Christian, the distinguished annotator of Judge Blackstone, decides 
that a Judge ought to resign his office, rather than allow himself to be the 
organ of the execution of an iniquitous law." 

" Derived power can not be superior to the power from which it is derived." 
— Noyes 1 Maxims, p. 3. 

"The lawful power is from God alone, but the power of wrong is from 
the devil and not from God; and whose soever work a king shall do, his ser- 
vant he is, whose work he does. Wherefore, when he does justice, he is the 
minister of the Eternal King, but when he does unrighteousness, he is the 
servant of the devil." Bracton, Lib. 3, Chap. 9, p. 106-7. 

" For he is called a king (a ruler,) for ruling righteously, and not because 
he reigns. Wherefore he is a king, when he governs with justice, but a ty- 
rant, when he oppresses the people committed to his charge." — lb. 

Power of the Common Law. 
The reader will pliease to understand that he has been 
perusing extracts, not from the " fanatical" proceedings of 
an anti-slavery Convention, but from the venerated and au- 
thoritative volumes of the Common Law — the same Common 
Law that is so manifestly the basis and ground work of all 
the fundamental provisions of the Constitution of the United 
States: the same Common Law in which every man finds the 
chief guaranty of his rights. If we can understand the 
1 spirit" of the Common Law, we can understand the "spirit 



AMERICAN CONSTITUTIONAL LAW. 101 

of the Constitution" by which we are to interpret and con- 
strue its disputed provisions. How much of a " compro- 
mise" or " guaranty" of slavery, " the spirit of the Constitu- 
tion" will sanction, the reader can judge.* 

These principles of the Common Law, being connected 
with the British Constitution, as they are with ours, abolish- 
ed slavery in Great Britain, by the decision of Lord Mans- 
field, in the Somerset case, in 1772. Is the thought to be 
admitted, for a moment, that the " spirit of the Constitution 1 ' 
of the United States, is less friendly to liberty, less potent 
for its protection, less hostile to despotism, or less efficient 
for its overthrow- 1 — in a word, less republican, than the Con- 
stitution of a limited monarchy, like Great Britain % Did 
the American Revolution, and the Declaration of Indepen- 
dence retard, or thrust back, the march of human freedom 
and human improvement, instead of urging it forward % 

The Constitution of the United States, both in its letter 
and its spirit, is moulded and fashioned upon the model of 
the Common Law, and instinct with its life-inspiring spirit, 
throughout. Whereas the Constitution of Great Britain, 
that, in the structure of the government, received its dis- 
tinctive shape and texture before the principles of the Com- 
mon Law began to be distinctly understood, received after- 
wards, into its old stock of monarchical and aristocratic 
ingredients, but comparatively few grains of the democratic 
principles of the Common Law — yet they proved sufficient to 
leaven the whole lump with the spirit that abolished negro 
slavery, first in the Island itself, and afterwards in its depen- 
dencies, Asiatic and American. By our dismemberment 
from Great Britain, are we then to become less free and se- 
cure than British subjects % "While " slaves can not breathe 
in England" nor in her colonies, can freemen find no secu- 
rity in America ? Have we fallen so low, in the sight of all 
the nations ] 

No ! Thus it can not be. Thus it shall not be. Thus, 
constitutionally, legally it IS NOT ! Slavery, in these 
United States, is sheer usurpation, and abuse, from begin- 
ning to end ; a nuisance, demanding judicial, (not to say 
legislative,) removal. Every slave held in America, is un- 
lawfully held, and in defiance of American Constitutional 
Law. One single consideration is conclusive of the whole 

* We will likewise ask the reader to study carefully these Common Law maxim-, lo 
fix them in his memory, and note the page for future" reference. We shall have occa- 
sion to refer to them again, for other purposes than to ascertain the spirit of the Con- 
stitution of 1767-9. They have an independent and inherent power, in tfumstl: 



102 AMERICAN CONSTITUTIONAL LAW. 

matter, and it is simply this: — The Constitution of the Unit- 
ed States, yes ! — the Constitution of 1787-9, is identical in 
its spirit with the spirit of the Common Law. It is the leo-it- 
imate child, it is the well constructed instrument of the Com- 
mon Law. It is the embodiment of the Common Law, re- 
affirming its provisions, and constructing and commissionino- 
the Federal • Government to carry those provisions into ef- 
fect. [To say that it is not this, is to say that it is a mere 
confederacy, and no civil government at all.] And the 
Common Law, whereever recognized, whereever permitted 
to touch the statute book, to enter the Court of Justice, or 
to imprint the soil with the sole of her foot, is one uncom- 
promising and universal act of emancipation and abolition. 
To say that there can be constitutional slavery in the L'nited 
States — slavery tolerated by the Constitution — is the same 
thing as to say, that there is Common Law slavery, in the 
United States ; an absurdity that, in its own proper form, 
no sane man, perhaps, has ever yet been found to utter. 

Are we traveling beyond the record ] Anticipating a 
decision, beforehand, while our argument is unfinished ? 
Well, then, let us summon further witnesses. If the chi- 
mera of constitutional slavery, has as many lives as popular 
tradition attributes to another " domestic" animal among us, 
with its stealthy movements and its sharp claws, there are 
weapons enough, in reserve, to dispatch it. 

SECTION III. 

" Spirit op the Constitution" as attested by History, 
and by eminent civilians and jurists. 

If the shape of the Constitution, its gait, its countenance, 
its air, its sayings, its alliances, its devisings, and its doings, 
have not sufficiently manifested its "spirit" we will now 
call in the aid of witnesses, who are reputed to have stood 
nearer to it, and to know more about it, in its earlier days, 
in its origin, its birth-place, its parentage, its nursing and 
swaddling, than ourselves. 

" The spirit of the Constitution" if sought, out of the in- 
strument itself, and if sought by historical testimony, is to 
be sought in " the spirit of the age" and nation, in which the 
Constitution was born. The question becomes a question 
of the leading purposes, aims, objects, and principles, that 
gave birth to the Constitution — that preceded it — that de- 
manded it — that brought it into existence. 

To know " the spirit of the Constitution" then, we must 



AMERICAN CONSTITUTIONAL LAW. 103 

take a portrait of the " spirit of seventy-six !" If that 
spirit, like the prophet Samuel, is buried out of sight of the 
present generation, and if, " because the Lord has departed 
from them," and the well recorded words of the seer will 
not suffice them, they must needs demand a vision of the 
"spirit" itself-— let them strengthen themselves for the sight, 
lest they " fall straightway all along on the earth, and are 
sore afraid at its words," when it rises before them, like 
" gods, ascending out of the earth." It comes ! It comes ! 
" An old man covered with a mantle" — its declaration of 
self-evident truths burning from its lips — its right hand, lift- 
ed to heaven, in solemn appeal to " the Supreme Judge of 
the world, for the rectitude of its intentions" — while "in the 
name and by the authority of the good people of these col- 
onies"— " with a firm reliance on the protection of Divine 
Providence" — "for the support of this declaration" and 
pledging (on behalf of those people) " their lives, their for- 
tunes, and their sacred honor" — it affirms, (as founded on 
" duty " and on " right,") its act of separation from the peo- 
ple and government of Great Britain ; " TO INSTITUTE 
A NEW GOVERNMENT, laying its foundation on such 

PRINCIPLES, AND ORGANIZING ITS POWERS in SUcll FORM" 

as " shall seem most likely" to " secure those rights for 
which governments are instituted among men" — " holding 
these truths to be self-evident, that ALL MEN are created 
EQUAL, that they are endowed by their Creator with cer- 
tain INALIENABLE RIGHTS, among which are life, 
LIBERTY, and the pursuit of happiness." 

Such is the " spirit oj 'seventy-six." Will it be pretended 
that that "spirit" was dead and buried, without hope of res- 
urrection, in less than thirteen years after its memorable 
" Declaration %" Will it be pleaded that " the spirit of the 
Constitution" of 1787-9 is not identical with the " spirit of 
seventy-six" — pursuing, in the Declaration and in the Con- 
stitution, one and the same end 1 

"Was the solemn pledge of '76 unredeemed, nay, deliber- 
ately broken by the Constitution of 1787-9^ 

Is the "spirit of the Constitution" of 1787-9, the deadly 
antagonism of " the spirit of seventy -six ?" This it must be, 
if it either " guaranties" slavery, or holds any manner of 
"compact" or "compromise" with it] And then, it be- 
comes the deadly enemy of the nation's freedom, instead of 
its servant and protector ! 

"We have not room to cite a tythe of the concurrent testi- 
mony of that period. We might notice that the " Declara- 



104 AMERICAN CONSTITUTIONAL LAW. 

tion of self-evident truths" was likewise a declaration of well 
recognized and oft reiterated truths — that the language of 
that national document was not only the language of the 
Common Law, but the language, likewise — almost to plagia- 
rism — of the popular and widely current anti-slavery litera- 
ture of those times. We might cite the anti-slavery pledge 
of the Continental Congress of 1774, the solemn denial, by 
the same Congress, in 1775, that "the Divine Author of our 
existence intended a part of the human race to hold an abso- 
lute property in, and mibouncled ?)ower over others." We 
might cite the testimony of Mr. Jefferson, in his Notes on 
Virginia, towards the close of the Revolutionary War, that 
the anti-slavery sentiment was gaining ground " since the 
origin of the present Revolution" and the way preparing 
" for a total emancipation." We might recite the anti- 
slavery efforts, (as well as writings,) of Dr. Rush, John Jay, 
Alexander Hamilton, and Benjamin Franklin, at that period, 
and so onward, during the progress of measures for forming 
the present Constitution,* and after its adoption. This, in 
connection with the actual abolition of slavery, and the 
adoption of measures for this end, in a number of the States, 
and the generally expressed belief that these measures were 
about to be extended into all the other States. The acts of 
Congress, already mentioned, just before, and confirmed 
again just after the adoption of the Federal Constitution, 
forever abolishing slavery in the North West Territory, to 
the end that the Territory might be formed into "republican 
States and have no slavery." Nor could we well omit the 
" Observations on the American Revolution," published by 
Congress in 1779 ; containing this declaration : — " The 
great principle (of government) is, and ever ivill remain in 
force, that all men are by nature free, and so long as we 
have any idea of justice, we must associate that of human 
freedom. It is conceded on all hands, that the right to be free 
can never be alienated. f We might mention too, the 
statemennt of Judge Wilson, one of the members of the 
Convention that framed the Constitution, which he made 
in the Pennsylvania Convention for its ratification, the same 

♦Hamilton and Franklin were members of the Convention that framed the Consti- 
tution. Rush and Franklin were signers of the Declaration of Independence. 

t Here, by the bye, we have another definition of a " republican form of government" 
which we omitted to quote in its proper connection, in our second chapter. It furnish- 
es also, a definition of that "justice" which is promised in the Preamble of the Consti- 
tution, and atfirms (what we shall have occasion to insist upon by and bye) that the 
great anti-slavery principle of the Declaration of Independence, is not only " the 
spirit of the Constitution" of 1787-9, but " will ever remain in forqe" whether 
witk th.e coucurreuee of pa.rchm.eut Constitutions or without them,. 



AMERICAN CONSTITUTIONAL LAW. 105 

year, that the Federal Constitution had " laid the foundation 
for banishing slavery FROM THIS COUNTRY V'— and in 

accordance with this, the anti-slavery petition of Franklin, 
(another member of the Convention that formed the Consti- 
tution,) as President of the Pennsylvania Abolition Society, 
praying Congress, in 1790, to " secure the blessings of lib- 
erty to the People of the UNITED STATUS," "without 
distinction of COLOR."* To this we might add the decla- 
ration of Washington that slavery ought to be abolished by 
legislative authority, and that his vote should be given for 
the measure. We might add the testimony, not only of 
Madison, Pinckney, and Jay, but also of Patrick Henry, 
Grayson, Tucker, Wythe, Pendleton, Lee, Blair, Mason, 
Page, Parker, Randolph, Iredell, Spaight, Ramsay, Martin, 
McHenry, Chase, Bayard, Rodney, Rawle, Buchanan, 
Wilkinson, Pleasants, McLean, Anthony, Bloomfield, Gal- 
loway, Johnson, Dawes, Scott, Gerry, Rice, Brown, Camp- 
bell, &c, &c. A list including the most prominent states- 
men of the South as well as the North, proclaiming before 
the sun, that slavery was a fast waning system, that must 
speedily fall. 

And, what is more significant than any thing else, so over- 
whelming was this spirit of abolition, during the period from 
1774 to 1790, that the voice of opposition teas husked! Luther 
Martin of Maryland, is reported as having made a powerful 
anti-slavery speech in the Convention that framed the Con- 
stitution, but it is not on record that a solitary member moved 
a tongue in reply. So far from there being a pro-slavery 
excitement at the South, every southern member of Congress 
voted for the abolition of slavery, in the North Western 
Territory, and the public press in Virginia was loud in its 
condemnation of slavery. 

But we must pause. It would require a much larger 
book than the one we are now writing, to present any thing 
like an adequate expression of the ANTI-SLAVERY 
''SPIRIT OF THE AGE" in which the Federal Constitu- 
tion was framed and adopted. About ten pages of Weld's 
" Power of Congress over the District of Columbia" — com- 
mencing on page 25, is occupied with a condensed specimen 
of the language of eminent statesmen of that period, on the 
subject, which the reader would do well to examine. 

* There was no District of Columbia at that lime, and no Territory in which slavery 
had not already been abolished by Congress. Very manifestly, then. Dr. Franklin 
petitioned for the abolition of slavery in the States, and by the Federal Government 
which he had assisted in framing :— a fact that has been alluded to, in recent pro- 
slavery reports in Congress. 



106 AMERICAN CONSTITUTIONAL LAW. 

The evidence is overwhelming, that the prevailing "spirit 
of the age" that produced the Federal Constitution, was an 
anti-slavery spirit, and that this spirit was manifest in the 
leading minds by which the Constitution was projected, and 
adopted as well as framed. The pretense of a "compact" 
— a " compromise" — a " guaranty" in the Constitution, or 
at the basis of it, in favor of slavery, becomes too absurd to 
be discussed without irony. 

Extent of the National Power. 

The " spirit of the Constitution," in respect to slavery is 
sufficiently apparent. " The spirit of the Constitution" in 
respect to the powers essential to be granted, and intended 
to be conferred, upon the Federal Government, constitutes 
a distinct branch of inquiry, to which we will now turn. 

The letter of the constitutional provisions on this subject, 
we have considered, elsewhere, and have found them amply 
sufficient to authorize the abolition of slavery. And what 
reason have we to suppose that the spirit of the Constitution, 
in this respect, is behind the strict letter of its provisions % 
What is there, in the instrument itself, in the structure of 
the Federal Government it authorizes — what is there in the 
history of the times, what was there, in the wants or the 
wishes of the people, that should indicate that the strict let- 
ter of the Constitution, in this particular, is not in accor- 
dance with its spirit and design ? 

The' whole framework of the Federal Government, as 
detailed in the provisions of the Constitution, including its 
restrictions of State power, reveals to us the fact that a 
Govcr?i?nent, not a Confederation, a Government not merely 
in name but in fact, was intended, was authorized and in- 
stituted, by the instrument containing the organic law of 
the Government, and declaring itself, to be "the swprcmelaw 
of the land." And there is no such thing as a civil or polit- 
ical government, by the definition of any eminent civilian or 
jurist, that does not possess the power to establish justice, 
secure the blessings of liberty, protect individual rights, and 
" execute judgment between a man and his neighbor." 
" When the laws have declared and enforced all this" — as 
Mr. Jefferson hath it — " they have fulfilled their functions." 
To talk of a civil or political government that does not pos- 
sess this power, is to talk absurdity, self-contradiction, and 
nonsense. It is to speak of a thing as existing and not ex- 
isting at one and the same time. 

The old " Articles of Confederation" between the States, 



AMERICAN CONSTITUTIONAL LAW. 107 

had been entered into, in 1778. This arrangement had 
been found necessary to clothe in a more formal manner, the 
" Continental Congress" with the powers the national exi- 
gences had been found to need. Until then, the Declara- 
tion of Independence, establishing the principles and defining 
the objects of the new government, but entering very little 
into details, had constituted, along with the Common Law, 
the only distinctive Constitution of " the United States," 
which that Declaration had affirmed to exist. 

And in these Articles of Confederation, a certain amount 
(jf " power and jurisdiction" (evident attributes of a civil and 
political government) had been — to use its own words — 
" expressly delegated to the United States in Congress assem- 
bled." The object of these powers was affirmed to be " the 
more convenient management of the general interests of the 
United States." In many important particulars, the powers 
that would have pertained to separate, disunited States, (such 
by the bye, as "the United States" described in the Declara- 
tion of Independence that gave birth to them, never were,) 
did not, as a matter of stipulated arrangement, pertain to 
the States under the Confederation. Among other things, 
they could grant no titles of nobility, nor keep vessels of war 
or other armed force, in time of peace, nor without leave of 
the United States — neither could they engage in war, unless 
actually invaded — circustances sufficiently indicative of their 
limited j)oicers, and of the dependence of the individual State 
upon the Confederacy. Congress, with the concurrent con- 
sent of nine States, &c, &c, were to exercise the "sole and 
exclusive right of determining on peace and war." — Were 
to determine controversies between different States, were 
(exclusively) to receive and send foreign ambassadors, enter 
into treaties and alliances, manage all affairs with the In- 
dians, fix the standards of coins, weights and measures, es- 
tablish post-offices, &c, &c. 

Nevertheless, after the experience of nine years, it was 
found that the powers of Congress were not sufficiently ex- 
tensive to secure to THE PEOPLE the full benefits that a 
NATIONAL GOVERNMENT ought to confer, and the 
Preamble to the present Constitution may afford us some 
hints of those ascertained defects, as may likewise those 
specific provisions in favor of liberty which have already 
been discussed ; particularly the Amendments. Hence, the 
new Constitution was formed. 

It is known that the delegates to the Federal Convention 
came together with various and discordant views of the de- 



108 AMERICAN CONSTITUTIONAL LAW. 

gree of power which the National Government should pos- 
sess, and that the proper adjustment of power between the 
State and National Governments, involving the difficult if 
not impracticable problem of reconciling a National Govern- 
ment with the independency of the States, occupied by far 
the greater part of the time of the Convention. This prob- 
lem indeed, along with the connected one, of properly ad- 
justing the relative power of the larger* and the smaller 
States (not the Northern and Southern, the slaveholding or 
the non-slaveholding)t and allaying the rising jealousies be- 
tween them, drew out the greater part, of the debates in the 
Convention. And those delegates who came into the Con- 
vention strongly prejudiced and even pledged against the 
conferring of larger powers upon the National Government, 
found either their own views modified by the facts and ar- 
guments adduced in the debate, or else found themselves in 
an inconsiderable minority, at the close of the Convention.^ 

We may be certain, then, of two things — first, that the 
words employed in the Constitution were not inadvertently 
used — second, that the powers conferred were not hastily 
and inconsiderately bestowed. What those powers are, the 
Constitution distinctly states. 

Nor was the Constitution adopted without a public and 
wide spread agitation and discussion of this very point. The 
adoption of the Constitution was opposed on the ground, 
chiefly, of its too ample bequest of powers to the Federal 
Government, to the detriment or the danger of " State 
Rights." Yet notwithstanding all this, and although the vast 
abilities and almost unbounded influence of Mr. Jefferson 
and his friends were thrown into the scale of opposition, 
yet the overwhelming majority in favor of ratification, (in- 
cluding the mass of those statesmen and of the citizens, who 
afterwards, and on other grounds, rallied round Mr. Jeffer- 
son and elevated him to the highest office in the Govern- 
ment,) very soon decided the question, and such a degree 
of enthusiasm prevailed, that, from that day to this, few 
statesmen, however fearful of " State Rights" and fearful of 

* Massachusetts, Pennsylvania, and Virginia, were then the large States whose pow- 
er was feared. 

t Nearly all the States if not all, were then slaveholding States, and not one of them 
expected long to remain so — a fact that may well account for the little attention paid 
in the Convention, to that subject, and throwing an air of the ridiculous around the 
grotesque pretension of a "compact" — "compromise" — or "guaranty" on that subject. 

| For the correctness of these statements, we refer to "Secret Proceedings and De- 
bates of the Convention that assembled in Philadelphia, in the year 1787, for the pur- 
pose of forming a Constitution of the United States of America, from the notes of the 
late Robert Yates, and copied by John Lansing, Jr., members of that Convention." 
Albany, 1821. 



AMERICAN CONSTITUTIONAL LAAV. 109 

the National Power, have adventured to find fault with the 
provisions of the Constitution in this particular. 

And what is still more significant, no class of statesmen, 
not excepting Mr. Jefferson and his particular friends, have 
ever found the constitutional powers of the Federal Govern- 
ment too extensive for their convenience, when charged with 
the administration of the national affairs. In his purchase 
of Louisiana, Mr. Jefferson admitted distinctly that he ex- 
ceeded his constitutional powers ; at first he suggested an 
alteration of the Constitution, extending its powers for that 
purpose, but afterwards consoled himself with the thought 
that the popular assent to that measure made it as valid as a 
formal change of the Constitution could have done. And in 
his annihilation of all foreign and even coast-wise commerce, 
by the long embargo, he gave a much larger construction to 
the Federal Power over commerce than the total abolition of 
the domestic slave-trade (even upon Mr. Clay's identification 
of the slave-trade with slaveholding) would require. Mr. 
Madison, who once thought the establishment of a National 
Bank, beyond the constitutional scope of the Federal Power, 
was afterwards willing to see that power used for that pur- 
pose. And all who assent to the constitutionality of protec- 
tive or prohibitory tariffs, claim a much higher and a much 
more questionable power for the Federal Government — in 
the view of any unprejudiced constitutional lawyer — than 
the power of abolishing slavery in the States — even allow- 
ing that the specific iwovisions of the Constitution in that di- 
rection, should be left out of the argument. 

It remains that we add some citations from approved con- 
stitutional authorities, attesting the powers which " the spirit" 
and letter of the Constitution confers on the government it 
authorizes and institutes. 

While the question of the adoption of the Federal Consti- 
tution was yet pending, and one of the main objections, as 
already noticed, was the excess of national, in opposition to 
state power, Alexander Hamilton, (who, along with Madi- 
son and Jay, was explaining and defending the Constitution 
in the papers called " The Federalist,") so far from con- 
cealing or explaining away this feature of the proposed Gov- 
ernment, avowed and defended it in the bold language that 
follows : 

" But it is said, that the laws of the Union are to be ' the supreme law of 
the land.' What inference can be drawn from this — or what would they 
amount to, if they were not supreme ? It is evident they would amount to 
nothing. A LAW, by the very meaning of the term, includes supremacy. 
It is a rule, to which those to whom it is pies:ribed, are bound to observe." 
Federalist, No. XXXIII, page 175. • 



110 AMERICAN CONSTITUTIONAL LAW. 

In the same connection he shows the confusion and anar- 
chy that would ensue if the National Government were not 
to be invested with that supreme and paramount authority 
over the States which the Constitution describes. And 
in another article, setting forth the " defects of the present 
Constitution" (meaning the then existing Articles of Confed- 
eration,*) the same writer says, 

" The next most palpable defect of the existing Confederation is the total 
want of a Sanction to its laws." — Federalist, No. XXI, page 110. 

In pursuing the subject, the waiter among other things, 
makes the following significant suggestion ; 

" Who can predict what effect a destotism, established in Massachu- 
setts would have upon the liberties of New Hampshire or Rhode Island, 
Connecticut or New York V — lb. page 112. 

Sure enough ! And who could predict the effects of a 
'despotism in Virginia, upon the liberties of Pennsylvania and 
Ohio? More than Hamilton apprehended, has already been 
realized. But his suggestion furnishes a pertinent comment 
upon the constitutional power of Congress — as construed by 
" the spirit of the Constitution" — under the clause that 
" guaranties to every State in this Union, a republican form 
of government." Coming as this hint did, from a known 
abolitionist, how happens it that the South took no alarm, if 
the South had then expected to perpetuate slavery 1 Nei- 
ther this hint, nor his exposition of the supremacy of the 
Constitution and the laws of Congress appear to have had 
any other effect than he desired, viz : to make the Consti- 
tution popular with the people, and secure its enthusiastic 
ratification. 

Mr. Madison, one of the most prominent members of the 
Federal Convention, and himself a slaveholder, in a speech 
in the first Congress under the new Constitution, May 13, 
1789,. referring to that contemplated abolition by Congress 
of the African slave-trade, a measure that was then antici- 
pated to he identical, in effect, with the abolition of slavery 
itself, held the language that follows : 

" I should venture to say it is as much for the interests of Georgia and South 
Carolina, as of any State in the Union. Every addition they receive to their 
number of slaves tends to weaken them and renders them less capable of self 
defense. In case of hostilities with foreign nations, they will be the means 
of inviting attack instead of repelling invasion. It is a necessary 
DUTY of the GENERAL GOVERNMENT to PROTECT every part of 
the Empire against DANGER, as well external as internal. EVERY 
THING, therefore, which TENDS ib increase this danger, though it may be 
a local affair, yet, if it involves National Expense OR safety, it be- 

* It will be noticed here, that Hamilton considers the Articles of Confederation a 
Constitution, but " defective" because not conferring sufficient poicers* 



AMERICAN CONSTITUTIONAL LAW. Ill 

comes a concern to RVERY TART OF THE UNION, and is a proper 
subject for the consideration of those charged with the GENERAL. AD- 
MINISTRATION of the GOVERNMENT."— Cong. Reg. Vol. 2. page 
310—11. 

The powers of the Federal Governmeut in general, and 
in particular reference to slavery, according to " the spirit 
of the Constitution" as understood by Mr. Madison, may be 
gathered from this paragraph with sufficient distinctness. 
What a comment upon the miserable pretense that the North 
lias no right to interfere — that there was a " compact," a 
"compromise" an "understanding" — nay, even a "guaranty" 
(as some have it) by which the Federal Government is pre- 
cluded from touching the proscribed topic ! Yet who can 
fail to see that Mr. Madison's doctrine is but a fair exposition 
of the power of Congress to provide for " the general de- 
fense 1" The " war power of Congress" as insisted on by 
John Quincy Adams, to abolish slavery in the States, is evi- 
dently but an approximation to the higher doctrine of Mr. 
Madison, as here expressed. And the official statements of 
the late Secretary of the Navy, Mr. Upshur, which no one 
pretends to call in question, may suffice to show that the oc- 
casion for the prompt exercise of this constitutional power 
to abolish slavery has. fully arrived. Even the item of " na- 
tional expense" Mr. Madison makes a sufficient cause for 
such action on the part of the General Government, even 
without the danger of a partial conquest and, consequent dis- 
memberment of " the empire." And according to the best 
estimates, jhe " expense" of the necessary means of defense 
recommended by Mr. Upshur, could not fall short of two 
Uviulrcd millions of dollars f . to begin with, to say nothing of 
the standing expense, afterwards, (of, say twenty millions jier 
annum,) to maintain such a Navy and keep it in repair. One 
of these things, then, the National Government must and will, 
as a matter of fact, do : — either incur this expense, or aban- 
don "the general defense" of the country, or "provide for 
the common defense" by the only remaining means in its 
power, the exercise of its. constitutional aulhori ty for the 
abolition of slavery in the States. 

Among Constitutional Jurists now on the stage, there is 
no one, perhaps, whose opinion would have more weight 
with those who would controvert our positions, than that of 
Judge Story. His participancy in the late decision of the 
Supreme Court in the case of Prigg versus Pennsylvania, 
will relieve him from the suspicion of any undue tendency 
to construe the provisions of the Constitution in favor of ab» 



112 AMERICAN CONSTITUTIONAL LAW. 

olition. Let us hear his exposition of the powers of the 
General Government: 

" If there be any general principle which is inherent in the very defini- 
tion of Government, and essential to every step of the progress to be made 
by that of the United States, it is, that every power vested in the Govern- 
ment, is, in its nature sovereign, and included by the form of the term, 
the right To employ all the means requisite, and forcibly appli- 
cable to the attainment of the end of such power, unless they are excepted 
in the Constitution, or are immoral, or are contrary to the essential objects of 
political society."* 

Assuming then, as Judge Story did, in common with oth- 
ers, that certain powers relative to the return of fugitive 
slaves, were vested in the General Government, it is easy to 
see how he drew the conclusion that the State Governments 
could not, by any legislative provisions, interfere with the 
exercise of that power. Admitting his premises, .the con- 
clusion seems sufficiently logical, so long as we have any re- 
maining conceptions of a Government of the United States. 
Fresh evidence is here furnished, by the bye, that standing 
on the commonly assumed premises of a constitutional 
"compact, compromise or guaranty" in favor of slavery, 
there is no such thing as avoiding conclusions utterly sub- 
versive of personal security and general freedom. It is high 
time, then, to examine the premises themselves, and to know 
whether we live under a free government or a despotism. 

But we have made this citation, in this place, for the pur- 
pose of saying that the ample and sovereign powers vested 
in the Government of the United States — according to Judge 
Story — powers in the legitimate exercise of which, (according 
to the late decision of the Supreme Court) the States can- 
not interfere — >are powers abundantly sufficient, in such an 
application, to secure the objects of the Preamble of the 
Constitution, and its other manifold provisions in favor of 
"justice," — " liberty" — " general welfare" — " common de- 
fense," "republican form of government," &c. &c, and 
against "bills of attainder," " laws impairing the obligation 
of contracts" — " titles of nobility," " unreasonable seizures" 
and deprivation of" liberty, without due process of law." — 
These are " powers vested in the Government" by the letter 
and the spirit of the Constitution, while the " powers" to es- 
tablish slavery, hunt fugitives, kidnap freemen, or authorize 
others to do so, may be sought after, in the instrument, in 
vain. 

All the powers in the Federal Government, therefore, that 

* Quoted by Alvan Stewart, Esq., in his Constitutional Argument in the " Triend of 
Man" October 18, 1837. 



AMERICAN CdKStlTUTlONAL LAW. 113 

^the national abolition of slavery (legislative or judicial) calls 
for or requires, is precisely the same power that Judge Story, 
(in common with Hamilton, Madison and others) describe as 
belonging, of necessity, to the Government of the United 
States — powers that Judge Story and the other Judges of 
the Supreme Court have actually used in support of slavery. — 
So far as the powers of the Federal Government are concern- 
ed, the only difference between the clearly expressed and 
faithfully administered doctrine of Judge Story, and the doc- 
trine contended for, in this chapter, is this : — viz. 1. Judge 
Story (in the case of Prigg vs. Pennsylvania) maintains the 
supreme authority of National over State legislation, in a 
case where the "power vested in the Government" viz: to 
seize or authorize the seizure of persons claimed as fugitive 
s ] aves — i s a " power" not described nor specified in the 
Constitution — -a power not to be made out by " strict con- 
struction" and grossly inconsistent with " the spirit" of the 
Constitution itself. 2. Judge Story wields this power of the 
Federal Government in favor of slavery and consequently 
against liberty ;— we would wield the same federal power 
in favor of liberty and consequently against slavery. — 
Which application of that power will the American people 
prefer 1 ? 

We have already remarked that those most tender of State 
rights and jealous of National power have gone quite as far 
as others in the use of the highest and even questionable 
federal powers. We may now add that the highest stretch 
of federal power has been made in support of Slavery/ 
The purchase of Louisiana and the late decision of the Su- 
preme Court furnish instances in point. To scruple the use 
of the same powers in favor of the legitimate and highest 
objects of power, that are commonly conceded and wielded 
in subversion of those objects, is to bring the Government 
into ill odor and contempt. 

It is quite remarkable that the exceptions to the use of su- 
preme national power, laid down by Judge Story, are ex- 
ceptions that should have prevented him from giving his 
sanction to the late decision of the Supreme Court. A right, 
in the Government, to wield power for the enslavement of 
any human being, is a right that, in the nature of things, 
can never exist. Such a right the Constitution ^oes not 
even pretend to confer, and consequently the exercise of such 
an assumed right is " excepted in the Constitution," and its 
exercise is most notoriously and superlatively "immoral," as 
well as " contrary to the essential objects of political societv." 

8 



114 AMERICAN CONSTITUTIONAL LAW. 

But, on the other hand, the use of the supreme power of 
government "to establish justice" and "secure the blessings 
pf liberty" is emphatically the. use of it for the very " ends 
of such power" as explicitly specified in the Constitution it- 
self. Of course the Constitution can make no " exception'* 
to such use ! No " exception" can be pointed out,— no shad- 
ow of a provision that the ordinary and well known powers 
of civil government to abolish slavery shall not be exercised 
by the Government of the United States.*- And the highest , 
dictates of " morality"! are fulfilled by such an use of legis- 
lative and judicial power. And without such an use, "the 
essential objects of political society" can. never be at- 
tained, and the Government fails of fulfilling the appropriate 
functions of all civil government. 

We claim, then, that the " spirit of the Constitution" is 
the spirit of liberty, the spirit of uncompromising hostility to 
slavery. And we claim. that the "spirit of the Constitution" 
amply confers on the National Government the power to 
" establish justice"— to "secure the blessings of liberty"— -to 
". provide for the common defense"-r->and consequently, to- 
abolish slavery. 

SECTION IV. 
THE CONSTITUTION CONSTRUED. 
" The Spirit of the Constitution," on the wool-sack. 
To construe the Constitution or any portion or feature of 
it, is to fix, definitely, upon its true meaning, or some par- 
ticular portion or feature of it, and decide what application 
or bearing it has, upon some practical problem, particularly 
under consideration, at the time ; as, for instance, its bearing 
on slavery and the action of government, either for its sup- 
port, or its overthrow. 

The "spirit of the Constitution" furnishes the rule by which 
we are to construe its provisions and their application and 
bearing on slavery and its abolition, in the present discussion. 

* Another consideration sufficient to show the absurdity of supposing that by any 
!1 compact" or " compromise" the National Government was precluded from abolish- 
ing- slavery. No one t/Un questioned toe legitimate power of civil government in gen- 
eral, to abolish slavery, and the exercise of that power to that end was the rising fash- 
ion of the day, in this country. Yet in forming a civil government with suprtme pow- 
ers, no restriction was even attempted to be made, upon the power of the Government 
in that direction. Of course, the powers of the Government, in that particular, is the 
sume with that of other governments. The absence of any such restriction proves that 
no such " compact" or " compromise" was made. 

t The reader will please to notice this concession of Judge Story (in accordance 
with the principles of Common Law) that the powers of civil government, though in 
their, " nature sovereign" are restricted and limited by the principles of " morality," 
and " the essential objects of political society." What becomes then, of the law of, 
1793 and of the late dspjsipu of the Supreme Court ? 



AMERICAN CONSTITUTIONAL LAW.. 115 

This-" spirit of the Constitution" is nothing distinct from 
its general and predominant character. 

Every man is known in the community in which he moves, 
and is designated as having this character or that, accord- 
ingly as such or such traits or qualities are found to pre- 
dominate, in him. He is characterized by the qualities that 
are found to prevail in his movements, notwithstanding some 
particular incidents in his history may not seem well to 
harmonize or agree with that character. Just so, a Consti- 
tution of government has its distinctive, its appropriate, its. 
predominant character, although some incidental provisions- 
may present apparent or even real anomalies, or may be so, 
expressed as to appear ambiguous, or come into dispute,: 
and litigation. 

If a man should die leaving a last will and testament, and 
some of its minuter provisions should seem anomalous, ob- 
scure, ambiguous, or should come into litigation, the Court 
would try to ascertain, both by an examination of the instru- 
ment itself, and by the well attested character, pursuits, ends, 
objects, partialities, antipathies, attachments, and consan- 
guinity of the deceased, what the general character, spirit, 
end, aim, object, and scope, of the instrument was, and then, 
in the light of that ascertained spirit and character, of. the 
instrument, determine what disposition to make of the con- 
troverted point. If for example, the preamble in the prin- 
cipal item in the will should have consisted in the recital of 
the near affinity,, ancient friendship, mutual labors, and, 
invaluable services of one certain Jonathan <SWz$, well known, 
to have been a near relative, a munificent patron, and a 
faithful partner in the business of the testator, declaring the 
said testator's intention, ia this instrument, to give him his 
whole real estate — and if, in a subsequent part of the in- 
strument, after a minute description of the testator's home 
mansion and principal landed property, it should go on to 
devise and bequeath the whole to a certain person whose 
name was so clumsily or imperfectly (perhaps fraudulently), 
written by the draftsman, as to have given rise to the contest 
whether it were the aforesaid Jonathan Smith or one noto- 
rious felon John Smith, proved in Court to have been a dead- 
ly* enemy of the testator, who was always conspiring his ruin, 
who had often attempted to take his life, and whom the tes- 
tator, at the very time of making his will, was busily intent 
on bringing to justice — what do you think, candid reader, 
the .Court and jury would do with the very modest claims, 
of this Mr. John Smith \o the mansion and estate of the.. 



116 AMERICAN CONSTITUTIONAL LAW*, 

testator] — Settle but that one "delicate question" and you 
have comprised in a nut-shell the very gist and pith of the 
grave constitutional question at issue, befor^ this great nation, 
at this moment. 

The general character and spirit of the Constitution with 
its affinities, its aims, and its plighted promises to liberty 
have been abundantly proved. They stand out, in bold 
relief, in the fore front of the document itself, and are cor-; 
roborated by all the concurrent history of the times in which 
it was written. Not less well attested and notorious is the 
hostile character of the felon slavery, that would have 
strangled '* the spirit of the Constitution" — -the spirit of sev- 
enty-six, in the cradle ; and that was doomed to the gibbet 
with the same breath that directed the draft of the Constitu- 
tion ! Yet now it strides- modestly into Court, and claims 
the document as a deed of " guaranty" in its own favor ! It 
claims, the hearth-stone, the resources, the entire domain- 
of its hated rival, pretending to have derived its title from 
that rival's own voluntary bequest, as its beloved and favorite- 
heir! And "constitutional lawyers" are found, fee-hungry 
enough to pronounce the claim valid, or long eared enough 
to puzzle their spectacles over the "perplexing and difficult 
question !" 

One moment, and a brief space, we must devote to details. 

Is it still doubted by any one, whether the clause concern- 
ing "persons held to service and labor" may not possibly 
authorize the seizure and return of fugitive slaves ] Do the 
words of the instrument, by any English Dictionary, admit 
of a, possible construction to that import'? Was the instru- 
ment clumsily, or artfully, or ambiguously drafted by the 
penmen 1 Is it doubtful whether Jonathan Smith or John 
Smith, whether liberty or slavery should have the benefit of the 
disputed provision I Let " the spirit" — the general character 
of the Constitution turn the scale. 

Suppression of "insurrection"— protection against "do- 
mestic violence." What construction shall be put upon these 
disputed terms in the national "will and testament]" Is it 
"insurrection" to refuse to labor without wages ] " Insurrec- 
tion" to rebel against slavery ? Or are the insurgents those 
who violate that liberty which the Constitution ensures 1 Is 
it "domestic violence" to run away from women-wbippers 
and babe-stealers 1 Or even to wrench the manacle and the 
thumb-screw out of their hands % Or, on the other hand, is 
"domestic violence" to be defined by the usages of slavery 
i tse lf_^ t he well-known practices of slaveholders % Who 



AMERICAN CONSTITUTIONAL LAW. 117 

ghall stand for the lawful heir, the presumptive devisee, the 
legitimate child of the "spirit of the Constitution" — the 
"spirit of seventy-six"—- so far as this item of bequest is 
concerned ] Shall liberty or shall slavery inherit under 
the "will?" The litigants are both in Court. The jury- 
will please to look at them, and decide. There stands the 
"peculiar" claimant with its driver's lash in its hands. — its 
scales, for selling children by the pound, just before him— 
his blood hounds, for hunting down honest husbands in search 
of their kidnapped and ravished wives, just behind him. 
This is one of the claimants, under the bequest! The other 
is plain Jonathan himself, with his free labor scythe on his 
arm, a liberty vote in his pocket, and the cap of liberty on 
his head. Which most resembles the testator, claimed as a 
father ? Which looks most like "the spirit of the Constitu- 
tion" and of seventy-six 1 Gentlemen of the jury! As 
descendants of the Pilgrim Fathers, what say you ] What 
say you, from Bunker Jlill and from Plymouth Rock — from 
Monmouth and from Saratoga — which is the lawful heir ? 
At the ballot box you will render your verdict ! 

Glance we now at the constitutional provisions claimed 
for liberty- — for the consequent ejectment and banishment, 
as an usurper, of the slave power that has crept into the 
mansion house of the testator, and driven his children, in 
coftle gang, on to the plantation, as slaves. There is the item 
of the " will" that puts the commerce of the Nation, foreign 
and domestic, into the hands, and under the jurisdiction of 
Congress, the representatives of the People, and of freemen. 
Next comes the item that "guaranties to every State in this 
Union, a republican form of government." Then come, in 
succession, the items that inhibit "bills of attainder," " laws 
impairing the obligation of contracts" — conferring " titles of 
nobility" — " making war" upon our citizens, or " keeping 
troops" in time of peace, along with the items that secure a 
jury trial, and the benefits of the writ of habeas corpus. At 
last comes the cddicil of "amendments" to the "will," securing 
freedom of speech, of peaceably assembling, and of the press 
— security against "unreasonable seizures" — deprivation of 
" liberty without due process of law"—" excessive bail — 
cruel and unusual punishments" and providing "jury trial" 
where the value of twenty dollars is at hazard. Taking up 
these items, either in the gross or in detail — do they amount 
to a constitutional veto upon slavery, or do they not WVe 
claim to have proved by the rules,, and before the Court of 
"strict construction" that they do.. Is it in. the " spirit of the- 



US AMERICAN CONSTITUTIONAL LAW. 

Constitution," and of seventy-six to reverse tbe judgment there 
obtained] If not then that judgment of the lower Court 
must stand, as the ultimate decision of the -law. 

But, suppose, for the arguments' sake, that the proof be- 
fore the Court of strict construction had been less conclusive 
— that judgment had been suspended — nay, even that it had 
been rendered by that Court, against the claims of freedom, 
and that, on her appeal, instead of that of slavery, the cause 
were now in litigation here. What says the " spirit of the 
Constitution" and of seventy-six, to an issue like this 1 

What can it say but, as its noble name and high office die* 
tates, exalt the living " spirit" of the instrument, the " will," 
the Constitution, above mere dead letter, the words, the sylla- 
bles, the alphabetical characters it employs % 

Be it so, that the " word-catchers who live on syllables," can 
read no abolition of slavery in the "guaranty of a republican 
form of government," the exemption from " unreasonable 
seizures" — the security of liberty except " by due process of 
law" — nor yet in the prohibition of a caste of nobles — of 
" bills of attainder" — of " laws impairing the obligation of 
contracts" — while, at the same time (strange to tell) they 
can find read " fugitive slaves" in "persons held to service and 
labor," " from whom service and labor may be due" — can 
find " insurrection" in the refusal to work without wages, and 
" domestic violence" in the attempt to escape from domestic 
violence ! Be it so, that, on the argument of dry technical- 
ities we were wholly at fault, and that our opponents held 
the undisputed field as their own. What then ? If there 
be any significancy in an appeal to " the spirit" of the Con- 
stitution, we may say' of such, as the poet has said — 

" Commas and points they set exactly right, 
And 'twere a sin to rob them of* their mite !" 

And common sense may determine whether " the spirit" that 
solicitously guards against minor oppressions in minute de- 
tails could tolerate the sum and the climax of all oppress- 
ions in the gross, and reduced to the most perfect system of 
which history furnishes any specimen, or of which the human 
mind can conceive. 

What if it icere so, that the letter of the Constitution could 
not rightfully be claimed as a guaranty of such a specific form 
of " republican government," as excludes slavery — does 
not the living "spirit of the Constitution" and of this pro- 
vision afford such a guaranty % To what purpose, or for 
what object, should the form of a representative government 



AMERICAN CONSTITUTIONAL LAW. 119 

be preserved, if the people, (instead of a select, a favorite 
caste of them) are not to be represented; nor republican 
principles honored, nor republican liberty and individual se- 
curity preserved 1 Is " the spirit of the Constitution" to be 
satisfied with the mere outward shell, without the vital es- 
sence of a republic I 

What if it could be doubted or denied that the prohibition 
of " bills of attainder," and of laws " impairing the obliga- 
tion of contracts," were provisions distinctly and directly 
prohibitory of slavery— is it not nevertheless manifest that 
" the spirit" that must needs guard against ordinary bills 
of attainder and against such laws " impairing the obligation 
of contracts" as are less oppressive than the code that vi- 
tiates the contracts of the laboring population of one half 
the States, is a " spirit" that can never consent to the in- 
comparably more extensive and unrelenting attainder of slave- 
ry — the still more unlimited annihilation of contracts wrap- 
ped up in the slave code % 

What if it were so that the prohibition of titles of nobility 
were not, in due form, a prohibition of the slaveholding caste, 
the more than villeinage or serfdom of their vassals : — Who 
does not see that the " spirit" that prohibits the former, 
must be still more irreconcilably hostile to the latter ? 

What if it were so that the provisions against "unreasona- 
ble seizures" and against the deprivation of " liberty without 
due process of law," were provisions which, technically con- 
sidered, could not be directly claimed for the enslaved ; — it 
would nevertheless be true that the living " spirit" and vital 
essence of such provisions demand and authorize the instant 
abolition of slavery. 

What if it were so that the benefits of jury trial, and of 
the habeas corpus were not particularly secured or provided, 
for the especial use of the fugitive slave : — can the living 
" spirit" of such provisions be satisfied — can it be preserved — 
in the presence of the Act of Congress of 1793, and the de- 
cision of the Sdpreme Court in the case of Prigg versus 
Pennsylvania] Let passing history answer. 

Most manifestly, if there be any significancy in an appeal 
to " the spirit of the Constitution" for the purpose of expound- 
ing provisions like these, in the exposition must be in favor 
of liberty and against slavery. 

And just at this point, before passing to another topic, we 
must pause to extend somewhat, an observation already 
thrown out in a note, in which it was remarked that the 
absence of any restriction upon the Federal Government, of 



J20 AMERICAN CONSTITUTIONAL LAW. 

the ordinary, the universal power of all civil governments to, 
abolish the slavery existing within their territorial limits, was 
proof positive that no such " compromise" or " guaranty" in 
favor of slavery had been made. We. now add that this cir- 
cumstance furnishes proof that the. Federal Government 
DOES possess power to abolish slavery, and is bound to 
EXERCISE that power. 

Admitting, as all candid men must do, in review of the ex- 
amination that has now been had, that there is nothing in the 
Federal Constitution establishing our National Government 
that restricts or prohibits that Government from the abolition 
of slavery, it follows — -first, that the common powers of all 
civil governments to " execute justice between a man and 
his neighbor," and consequently to abolish slavery, pertain, 
to the Government of the United States ; and consequently, 
second, that the same obligations rest on the Federal Gov=_ 
eminent to abolish slavery, that rest on every other govern- 
ment, on earth, in whose territorial limits slavery is practiced. 

Those who remind us that the Federal Government is a 
limited government, and therefore can not abolish slavery, 
always refer us, of course, to the Federal Constitution, for 
the limitations of which they speak. But the Federal Con- 
stitution contains no limitations of the power of the Federal 
Government in the matter of slavery. That government, 
therefore, retains all the power over slavery that any other 
civil governments hold, and is charged with all the respon- 
sibilities, in respect to it, with which all other civil govern- 
ments are charged. And consequently, even in the absence 
of such specific provisions as those we. have considered— (the 
guaranty of a republican form of government, the exemption 
from unreasonable seizures, inviolability of liberty except by 
due process of law, the prohibition to the States of bills of 
attainder, nullification of contracts, titles of nobility, &c. &c.,) 
it would still be true that the Federal Government is amply 
competent to abolish slavery ; whether the Constitution be 
construed by " strict construction" or by " the spirit" of the 
instrument itself.* 

* To this view it may be objected, that by Article 10, of the Amendments, the con- 
trary rule is established, viz : that instead of the General Government holding all the 
powers not prohibited ; it holds none not specifically granted. To this it is sufficient 
to reply, that '•< the powers delegated to the United States" by the Constitution, do 
include the powers of a "government," (not a mere confederacy,) "of the United 
States." [See Art. I., Sect. 8, Clause 17.] And the" legislative," "judicial," and " ex-: 
ecutive" powers of that "government" are particularly enumerated, and the laws of 
the United States are declared to be " the supreme law of the land." These delega- 
tions of power comprise a full description of the essential powers of a " civil govern- 
ment," and the " establishment of justice" is declared to be the end of the whole. The 
gencrql powers thus delegated to the United States, (aside from specific provisions) are 
sufficient for the abolition of slavery, unless it can be shown (which it can not) that 
Binjh, iik pflfticiilar ^rcise of power is prohibited in the Constitution, 



AMERICAN CONSTITUTIONAL LAW, 121 

All this would be true, even upon the supposition that 
any artificial compacts or written parchments, could possihly 
construct a civil government that should be a civil govern-' 
ment, and yet wo^ be vested with the. power of securing inalien- 
able human rights ; a proposition we shall not stop to discuss 
in this place, though it may require attention elsewhere. 

SECTION V. 

Special Pleadings :— their fallacy, 

And what has the claimant of constitutional slavery to say 
more, in support of the claim 1 Or what reason can be givr 
en, why sentence of death should not be passed upon slavery 
itself] 

Are we to have a repetition of the cant phrases hitherto. 
in use 1 " The compact," "the guaranty," " the compro- 
mises of the Constitution 1" Notable words these, once 
—but what do they avail now ? "What has become of them % 

Does the Constitution of 1787-9 contain the " compact V" 
If not, where shall we look for it ] Where is the document, 
or the record, that we may fasten our eyes upon it ] In what 
law library shall we inquire for it ] What is the name of 
the book and of the publisher that can put us in the posses- 
sion of it 1 ? In what public archives are they deposited, and 
who are they that have ever gained access to them ] 

National " compacts," " compromises," and "guaranties" 
are wont, in this age of printing presses and of official de- 
positories and records, to have some tangible shape and form, 
■ — some home and abiding place, where they may be exam- 
ined and referred to, at pleasure. Not only the learned ci- 
vilian but the humble citizen is wont to possess copies of 
them. They are found on the rural mantle-piece, and on 
the book-shelf of the artisan. They are among the reading 
books of the school boy, and become familiar as house^ 
hold words. Such are our Declaration of Independence, 
Articles of Confederation, and Constitution of the United 
States. 

Without a question, the Constitution, the Articles of Con-, 
federation, and the Declaration of Independence, are the 
national " compacts" of these United States. If there are. 
any others to be produced, where or what are they, or in 
whose hands are they to be found 1 

We are sometimes told that if there had not been some 
" compromise" made in respect to slavery the southern States 
would nol^ have come into the Union, It would seem a suf* 



122 AMERICA!* CONSTITUTIONAL LAW. 

ficient answer to say that the southern States 'did come into 
the Union, and that in the written compact the pretended 
** compromise" is no where to be found. If the southern 
States were so tenacious and jealous, is it credible that thejr 
would consent to leave the " compromise" out of the writing % 
Did they trust to some " implied faith" and " tacit under- 
standing" that was entered into, at the time, without being 
committed to paper] fey whom was that " implied faith" 
pledged % With whom was that understanding held ] With 
particular members of that secret Convention in which the 
Constitution was drafted % Who then were the parties to 
the " compact," to the " implied faith," the " tacit understand- 
ing V " We, the People of the United States" knew nothing 
of the matter, any farther than appeared in the written doc- 
ument itself, that was submitted to the people, for adoption. 
If the People of the southern States (who, by the bye, could 
have known no more of these secret understandings than the 
People of the North did,) adopted the Constitution, trusting 
in the "implied faith" and "tacit understanding" with indi- 
viduals of the Convention, then they trusted in those individ- 
uals, whoever they were, and must look to them, and not 
to the People of the United States., 

It would be just as easy to say (and more easy po prove) 
that the People of the North would not have come into the 
Union with any known compromise or guaranty of slavery, 
as it is to say that the People of the South would not have 
come into the Union without it. 

If it be said that two or three of the slave States — the 
Carolinas and Georgia — were backward to come into the 
Union because Congress was clothed with power to abolish 
that foreign slave-trade, the abolition of which was then 
thought to be equivalent to the abolition of slavery — the fact 
that they nevertheless did come into the Union, shows that 
they did it with their eyes open, and after full rime to delib- 
erate and consider. And we might offset these hesitancies 
of the far South with the fact that Rhode Island accompanied 
her ratification of the Constitution with the proposed Amend- 
ment that the slave-trade should be speedily abolished, and 
that her ratification was expressly made " in confidence that 
the Amendment" would " speedily become a part of the 
Constitution." 

And, so far as the States, or the People of the States are 
concerned, who could have been the parties to the " compact" 
and " the compromise" about slavery 1 All the States were 
slaveholding States, then, but none of them expected to con* 



A^krCANCONSTlTUTroNALLAW, 123 

tinue so. Bat for the unexpected culture of cotton, and the 
invention of Whitney's cotton gin> it is commonly thought 
that slavery would have run out> in the course of that gene- 
ration, or at any rate, could not have long survived the abo- 
lition of the slave-trade. 

So far from its being true that the southern States would 
not have ratified the Constitution if they had thought the 
Congress would have abolished slavery, they did ratify the 
Constitution believing that the anticipated abolition of the 
slave-trade by Congress ivould be (as it was intended to be) 
the virtual abolition of slavery throughout the States. This 
assertion is not destitute of proof. 

The Federal Convention was held in 17S7, and in the same 
year, Judge Wilson, one of the members of that Convention, 
declared in the Pennsylvania Convention for its ratification, 
that the Constitution laid a foundation for " banishing slave- 
ry out of the country." And he added, " in the lapse of a 
few years, and CONGRESS icill have power to exterminate 
slavery within our borders." By this public declaration, 
Judge Wilson obtained the assent of the Pennsylvania Qua- 
kers to the Constitution. No man contradicted his state- 
ments, yet the southern ratifications which came indeed af- 
terwards, and tardily, were not withheld on that account. 

In Virginia the matter was well understood. Gov. Ran- 
dolph ^aid : — 

" They insist that the abolition of slavery icill result from this Consti- 
tution. I hope that there is no one here, who will advance an objection so 
dishonorable to Virginia. I hope that at the moment they are securing the 
rights of their citizens, an objection will not be started, that those unfortu- 
nate men now held in bondage, BY THE OPERATION OF THE GEN- 
ERAL GOVERNMENT, may be made FREE." 

This was said in the Virginia Convention for adopting the 
Federal Constitution. Whether there were any in that Con- 
vention, who dishonored Virginia by objecting to the ac- 
knowledged power of the Federal Government over slavery, 
we are not informed. If there icere, their views did not pre- 
vail. The Constitution was adopted. Similar statements 
are said to have been made in the Conventions of other 
States. 

And what if it were so, that in the secret Convention that 
drafted the Constitution, there were men who wished to 
shape the instrument in such an ambiguous manner as to 
favor slaverv, without saving- so, in direct and honest terms % 
And what if it could be proved, that this were so, and that 
they succeeded in their designs, so far as the drafting of the 
instrument is concerned] Would the "PEOPLE OF 



124 AMERICAN CaNSTITVTIONAL LAW* 

THE UNITED STATES," who knew nothing of the 
fraudulent procedure, be bound by the wicked intentions of 
the framers, or of a portion of them, instead of the natural 
import of the language they employed 1 Would " strict con*- 
struction" say so % Or is the " spirit of the Constitution" to. 
be accounted identical with the dishonest spirit of such men, 
who, after all, did not dare to excess, in the document, their 
nefarious designs ? Are we to be bound by their secret and 
unrighteous purposes, rather than by the righteous words they.' 
were obliged to emploxj, in order to make their document ac- 
ceptable to the People 1* 

We do not say nor even intimate that such were the facts ; 
but we do say that if the oft repeated story of an " under- 
standing" in favor of slavery, among the members of the- 
Federal Convention, be founded in truth ; and if, as is far- 
ther alleged, the disputed provision of the Constitution con- 
cerning "persons held to service and labor" was the result of 
that secret " understanding," and if the very remarkable 
phraseology there employed, (carefully excluding the word 
slave, and by no means describing the condition of a slave,) 
was intended, nevertheless, by the writers, to apply to fugi- 
tive slaves, then the annals of political chicanery furnish no- 
thing more reprehensible and deserving the indignation of 
mankind. Let those see to it, who would make such repre- 
sentations of the facts. If there are any who impeach the 
characters of the framers of the Constitution, before the world,, 
they are the persons. 

For, according to their statements, what were the facts ] 
And what was their conduct 1 

With the policy of holding the Convention in secret, we 
have nothing to say. We only allude to the fact that it was 
so held. The history of the " Secret Proceedings and De- 
bates of the Federal Convention," furnished us by two of 
the members, Messrs. Yates and Lansing, of the State of 
New York, tells us the story, as does likewise the commu- 
nication of Luther Martin,, of Maryland, (another member,) 
to the Legislature of his own State, which appears in the 
same volume. " The doors" says Mr, Martin, " were to be 
shut, and the iclwle proceedings were to be kept secret, and so 
far did this rule extend, that we were thereby prevented! 
from corresponding with gentlemen in the different States, 
upon the subjects under our discussion." 

This was in 1787. The Constitution was adopted by the 

* See Address to the Liberty Party in the United State's, by Alvan Stewart, Esq. 
Chairman of the National Liberty Committee.— Liberty Press, June 4, 1844. 



American cortsf tTiJTioNAt Law, 125 

St&teS during that year and the year following, and went into 
operation in 1789. Not until thirty-two years afterwards — 
not until the year 1821, do Messrs. Yates and Lansing lift 
the veil of secresy from the " proceedings and debates of the 
Convention," revealing, by the bye, in addition to the strong 
and apparently unanswered anti-slavery speech of Luther 
Martin of Maryland, very little that throws light on the 
views held in the Convention on that subject. Many years 
afterwards come the celebrated posthumous papers of Mr. 
Madison, said by those who have waded through them, to 
contain very little if any satisfactory information on that sub- 
ject. And are we now to be told, that the " spirit of the 
Constitution" is to be ascertained only by the secret, and for 
the most part, yet unrepealed sayings and doings of the Con- 
vention of 1787 — that the Constitution must be construed to 
mean what Messrs. So-and-So are rumored to have said in 
that secret Convention-^-that the " compromises" and "guar- 
anties" of the " compact" are to be looked after, in the secret 
and unknown doings of that Convention-^-NOT in the doc- 
ument they elaborated, nor yet in the ACTS and INTEN- 
TIONS of the People who took the instrument at its word, 
and adopted it, for what its Words made it ] 

The framers of the Constitution either intended a "com- 
promise" or " guaranty" in favor of slavery, or they did not 
■■ — they either intended to secure the return of fugitive slaves, 
or they did not 1 

If they did, then they deliberately intended and artfully 
labored to DO THE THING without TELLING THE 
PEOPLE that they had done it — without revealing the fact, 
by the words they employed ! The words slave and slavery 
Were, in that case* carefully avoided, and the description 
could not have been commonly understood as applicable to 
the slave. It icas not, in fact, applicable to the slave — and 
even allowing the fraud were intended, the extreme care to 
avoid the detection of the intention prevented the thing 
intended from being done ! But suppose they had succeeded 
in a covert yet correct description of the condition of the 
slave— ^Would the PEOPLE be bound by intention of the 
persons they employed to draft the instrument, or by THEIR 
OWN ] 

To put the strongest possible Case, gtfcf give the slave 
power the benefit of the worst possible supposition that can 
be made, we will suppose that the peoj/lc themselves, or a 
majority of them, in looking upon, and adopting the Consti- 
tution as a whole, deliberately intended the absurdity and 



126 AMERICAN. CONSTITUTIONAL LAW. 

impossibility of securing tb.eir own liberties and yet putting, 
their heels on the necks of their enslaved brothers!. A 
more diabolical act could not well be described, to be sure, 
but suppose it were even so, what then"? It still remains 
true that they intended to secure their*own liberties, and that 
in order to, do so, they intended to put such words and 
phrases into the instrument as would answer that purpose* 
It seems too, from an examination of the instrument that 
they had some correct notion of the proper language to be 
used. Well : thejrmade use of that language — but with 
a latent "understanding" that the- benefits of it should apply 
only to the " free white" inhabitants, and not to the enslaved [ 
But that distinction they were either afraid or ashamed to 
write down. The consequence is, the document itself does 
secure the rights of the whole population, whenever it is prop- 
erly applied. The ' question arises whether the "spirit" 
(along with the Letter) of the document is the same as the 
" spirit" of those who adopted it 1 And whether the present 
generation may not and should not use the document accord- 
ing to itself, and not according to them 1 Had they used 
the Bible itself (as tbey might effectually have used much 
of it) for the same purpose — would the "spirit" of the Bibh 
and their spirit be one and the same thing ? 

Suppose six brothers should have an "understanding" with 
each other, and in writing an instrument for the government 
of the whole family of twelve brothers, should write it so 
that the instrument would appear very fair in the eyes of all 
who should look upon it, and that by a fair construction, it 
would secure the equal rights of the whole. Yet, by their 
"understanding" of the matter,, some circumlocutions and 
ambiguities introduced for that object, into the paper, are 
intended to be used to deprive the other six of their rights. 
The question is whether an honest judge and jury may not 
use the document itself, fairly construed to. secure the wJwle 
family their rights, or whether they must needs be governed, 
in their decision, by the fraudulent intentions of the six, and, 
so help carry them out,, in their verdict and judgment ! 

'Twere needless to. trace out, and expose, in detail, all 
the puerilities that havq been uttered against the abolition 
of slavery, by Congress, in the District of Columbia. The. 
only pertinent question is, by what right, authority or war- 
rant, Congress has enacted slavery, there. 

What absurdity can exceed, that of saying, that the wishes. 
or the laws of Virginia and Maryland must govern the legis-. 
lation of Congress for the District 1 That there was an ; 



AMERICAN CONSTITUTIONAL LAW. 127 

* implied faith" to that effect in the cession of the ten miles 
square ! The acts of cession tell their own story. And so 
does the clause of the Constitution authorizing the accept- 
ance by Congress. With any such reservation, Congress 
had no constitutional authority to accept it, nor could its 
possession have answered the well known objects of the 
Constitution in providing for such a District. It ha<i been 
found that Congress could not act independsntly while set- 
ting in a location controlled by State policy, and State au- 
thority. Virginia and Maryland knew all this, and they 
understood and ratified the Constitution, before the cession, 
was made. And to say that Congress must not abolish slave- 
ry in the District, without a vote from the inhabitants, is to 
establish a principle which would wholly abrogate the legisla- 
tive authority of Congress over the District,, and leave it in 
a State of anarchy, without any civil government, at all! 
The power of Congress to abolish slavery in ths District, has 
never, until within a few years, been denied* and has been 
conceded by the most eminent statesmen of the South — by 
those now loudest- against the exercise, of the power. 



CHAPTER IV. 

OF THE. LEGALITY OF SLAVERY, BY, THE; 
CONSTITUTIONS OF THE SLAVE STATES. 

State, of the Question — Abolition of Slavery in Massachusetts — Slavery 
Unconstitutional in Delaware — Is Slavery Constitutional in Maryland 1— » 
Other States — North Carolina, South Carolina, Louisiana, Kentucky, Ten- 
nessee, Mississippi-— Conclusion. 

If slavery be inconsistent with the Constitution of the 
United States, it is natural to inquire whether it be consist- 
ent with the Constitutions of the States wherein it exists. 

And this question resolves itself into another, namely, 
whether the spirit and letter of those Constitutions, agree ; . 
in the main, with, the Constitution of the United States, or 
in other words, whether they embody " a republican form 
of government" which "the United States" have guarantied 
''to every State in this Union" — whether, like the States, 
formed out of the North "Western Territory, they are " re- 
publican States" and can " have no slavery V 

To answer this question in the affirmative, is to say that 
slavery in the States is illegal, because contrary to the 
State Constitutions. To answer it in the negative/is to say, 



12$ AMERICAN CoNSTlf UTtdNAt LAW, 

that Congress is bound to interfere* under the fourth sectiofl 
of the fourth article of the Federal Constitution, and provide 
for them republican forms or constitutions of government. 

Abolition of Slavery in Massachusetts. 

In one of the States where slaves were formerly held, a 
judicial decision, without any statute enacted by the legisla- 
ture* declared that slavery was illegal. 

" In Massachusetts, it was judicially declared, soon after the Revolution, 
that slavery was virtually abolished, by the Constitution, and that the issue 
6f a female slave, though born prior to the Constitution, was bora free."— 
Kent's Commentary, page 25:2. 

In giving the opinion of the Court in the case of the Com- 
monwealth versus Thomas Aves, in 1S33, Chief Justice 
Shaw, said j — 

" How, or by what act, particularly, slavery was abolished in Massachu- 
setts, whether by the adoption of the opinion in Somerset's case, as a decla- 
ration and modification of* the Common Law, or by the Declaration of Inde- 
pendence^ or by the Constitution of 1780,* it is not now very easy to 
determine, and it is rather a matter of curiosity than utility, it being agreed 
on all hands, that if not abolished before, it was so, by the declaration of 
rights. * * * * 

" Without pursuing this inquiry farther, it is sufficient for the purposes of 
the case before us, that by the Constitution adopted in 1780, slavery was 
abolished in Massachusetts, upon the ground that it is contrary to natural 
right and the plain principles of justice. The terms of the first article of the 
declaration of rights, are plain and explicit. ' All men are born free and 
equal, and have ceitain natural, essential, and unalienable rights, which are 
the right of enjoying and defending their lives and liberties, that of acquiring, 
possessing, and protecting property.' It would be difficult to select words 
more precisely adapted to the abolition of slavery." — Pickering's Reports; 
page 209-10. 

Slavery Unconstitutional in Delaware; 

ts Massachusetts the only State in the Union that has a 
" bill of rights," and a " Constitution" that recognizes the 
great central truth of republicanism that " all men are born 
free and equal'!" 

What say " our brethren of the South 1" Do they come- 
in for no share of the great national birthright of freedom ? 
Let us take a peep into their Constitutions* and see. 

The Preamble of the Constitution of Delaware, we have 
quoted* in another connection. Very manifestly there cart 
be no constitutional slavery in Delaware* and nothing is 
Wanting but a judicial decision, like that of Massachusetts^ 
to abolish slavery in that State. "AH men" are declared by 
the organic law of Delaware, to have, by nature, the rights 

* That is, the Constitution of the State. 



AMERICAN CONSTITUTIONAL LAW* 129 

of worshipping and serving their Creator according to the 
dictates of their consciences, of enjoying and defending life 
and liberty, of acquiring and protecting reputation and j^o- 
2)erty." No statute could be enacted more authoritative or 
explicit than this. The Constitution of Delaware provides 
for freedom of speech and of the press, and religious free- 
dom. It says : — 

" The people shall be secure in their persons, houses, papers, and pos- 
sessions, from unreasonable searches and seizures. 

" No attainder shall work corruption of blood, nor, except during the life 
of the offender, forfeiture of estate." 

In the entire document we meet with no discrimination 
on account of color, and no mention of slavery or slaves. 

If slavery be not illegal in Delaware where is it illegal 1 
This Constitution was adopted in 1792, and (we believe) 
after the judicial abolition of slavery in Massachusetts, so 
that the legal effect of such Constitutions could not have 
been unknown or forgotten. 

Is Slavery Constitutional in Maryland % 

" We, the delegates of Maryland," &c, &c, declare. " That all govern- 
ment of right originates from THE TEOPLE, is founded in compact only,- 
and instituted solely for the GOOD OF THE WHOLE." 

" That the INHABITANTS of Maryland, are entitled to the COMMON 
LAW OF ENGLAND." 

['Entitled to emancipation from slavery' could scarcely 
have been more explicit !] 

And again the phrase " the inhabitants of Maryland" is 
repeated. Further, it is declared — 

" That the right, in the PEOPLE, to participate in the legislature, is the 
best security of liberty and the foundation of all free government."* 

" That every man has a right to petition the legislature, for the redress 
of grievances, in a peaceable and orderly manner." 

" That paupers ought not to be assessed for the support of government, 
but every other person in the State ought to contribute his proportion of 
public taxes," <fcc< 

" That monopolies are odious, contrary to the spirit of a free govern- 
ment, and ought not to be suffered.'" 

" That no title of nobility, or hereditary honors ought to be granted in 
this State." 

[No exception is here made for the "hereditary honors" 
of white persons or of slaveholders.] 

The above are found in the Declaration of Rights, in the 
Constitution which was framed in August, 17 7 G. 

Other States. 
North Carolina.— ~" Declaration of Rights" — "That all political 
power is vested in, and derived from the FEople only." " That no man, or 

* Another definition at' "a republican form of government." 

9 



130 AMERICAN CONSTITUTIONAL LAW. 

set of men, are entitled to exclusive or separate emoluments, or privileges 
from the community, but in consideration of public services/' "That the 
freedom of the press is one of the great bulwarks of liberty, and therefore 
ought never to be restrained." " That all m#n have a natural and unali- 
enable right to worship Almighty God, according to the dictates of their own 
consciences."* " That a frequent recurrence to fundamental principles is 
absolutely necessary to preserve the blessings, of liberty." " That per- 
petuities and monopolies are contrary to the genius of a free State,! and 
OUGHT NOT TO BE ALLOWED." 

In the Constitution of North Carolina, (as ig those of 
Delaware an$ Maryland,) we find no, establishment of slave- 
ry, and no authority vested in the legislature to establish it. 
On the contrary, the. Constitution (Article 44) explicitly 
says— 

" That the Declaration of Rights is hereby declared to be a part of the 
Constitution of this State, and ought never to be violated on any pretense 
whatever." 

How then, can there.be way constitutional validity in the 
remarkably rigid slave statutes of North Carolina, by which 
the rights of conscience are violated, " fundamental princi- 
ples*' outraged, and monopolies established ! 

South Carolina. — Even in this State, the Constitution 
provides for " the free exercise and enjoyment of religious 
profession and worship!' and "trial by jury." " The liber- 
ty of the press, shall be forever inviolably preserved." 
Other parts of the document, however, are in bad keeping 
with these provisions, which, if carried out, would not fail 
to abolish slavery. Which part of the Constitution is to be 
considered indicative of its " spirit," and which must be set 
aside as anomalous, we will not now stop to inquire. 

Louisiana. — The Preamble to the Constitution declares 
that — " We, the representatives of the people," &c, " in 
order to secure to all the citizens thereof, the enjoyment of 
all the rights of life, liberty, and property, do ordain and 
establish the following Constitution or form of government, 
and do mutually agree with each other, Inform ourselves into 
a fret'X AND independent State," &c, kc. The Constitu- 
tion says-*— 

" Printing presses shall be free to every person who undertakes to exam- 
ine the proceedings of, the legislature, or any branch of the government, and 
no law shall ever be made to restrain the right thereof. The free commu- 
nication of thoughts and, opinions is owe of the INVIOLABLE RIGHTS 



* \nd yet, in North Carolina, the laws forbid the slaves to be taught to read the 
Bible or to be in possession of one! "In North Carolina the law prohibits a free col- 
ored man, whatever may be his attainmeuts or ecclesiastical authority, to preach the 
Gospel."— Jay's Inquiry, page 23; 

t Implying that North Carolina was to>.eE a "-free State." 

+ But is Louisiana a. free State? 



AMERICAN CONSTITUTIONAL LAW. 13 1 

OF M'AN, and every citizen may freely speak, write, and print, on ant 
subject, being responsible for the abuse of that liberty." — Article 21. 

" All laics contrary to this Constitution shall be null and void." — 
Article 25. 

The gentlemen of the legal profession will have little dif- 
ficulty in determining whether the following statute of Lou- 
isiana, a part of its slave- code, is constitutionally " null and 
void." 

" If any person shall use any language from the bar, bench, stace, pulpit 
or any other place, or hold any conversation huving a tendency to promote 
discontent among free colored people, or insubordination among slaves, he 
may be imprisoned at hard labor, not less than three nor more than twenty- 
one years, or he may suffer DEATH at the discretion of the Court." 

Kentucky.. — " We, the representatives of the PEOPLE of the State of 
Kentucky, in Convention assembled, to secure to all the citizens thereof the 
enjoyment of the right to life, liberty, and property, and of pursuing hap- 
piness, do ordain this Constitution for its government." 

Among other things, the Constitution declares — 

" That all power is inherent in the people, and all free governments are 
founded on their authority, and instituted for their peace, safety and happi- 
ness." 

" That all men have a. natural and indefeasible right to wors-hip Almighty 
God, according to the dictates of their own consciences." 

Freedom of speech and of the press are then secured in 
the same language as in the Constitution of Louisiana. 

Strange to tell, the same document contains a provision 
that the legislature shall have " no power to pass laws for the 
emancipation of slaves without the consent of their owners, 
or without paying their owners, previous to such emancipa- 
tion, a full equivalent in money for the slaves so emanci- 
pated !" 

It might well be questioned whether the legislature could 
enact or whether the Judiciary or Executive could enforce or ex- 
ecute slave laws without a violation of the fundamental pi in - 
ciples of the Constitution of Kentucky ! When a document 
stultifies itself in this manner, it would puzzle "strict con- 
struction" to make any thing but contradiction and self sub- 
version out of it. And " the spirit" of such a Constitution 
might be clirBcult to be ascertained. We will only say that 
if the free features of this Constitution are to stand, as valid, 
the pro-slavery features are to be set aside as incongruous 
and impracticable. But if these latter are to be held valid, 
then the former must be nugatory, and the Kentuckians are 
wholly without the benefits of their declarations and provis- 
ions, in favor of liberty. 

Tennessee. — Declaration of Rights. — " That all power is inherent in the 
PEOPLE, and all free governments are founded on their authority and in- 
stituted for their peace, safety, and happiness ; for the advancement of those 



132 AMERICAN CONSTITUTIONAL LAW. 

ends, they have, AT ALL TIMES an inalienable and indefeasible RIGHT 
to alter, reform, or ABOLISH the government, in such MANNER, as they 
may think proper." 

The " inalienable and indefeasible RIGHT" of " the people" of Kentucky 
— (nearly one third of whom are slaves and free " people" of color—and 
a small minority of whom are slaveholders) — to ABOLISH the government 
they live under, "in such manner as they may think proper" is pretty 
strongly stated in this article — -and with less of the peace principle in it, than 
the " incendiary abolitionists" would have been likely to have introduced !— 
Furthermore it is declared :■— 

" That all men have a natural and indefeasible right to worship Almighty 
God according to the dictates of their own conscience." — " That theP EO- 
PLE shall be secure in their persons, houses, papers, and possessions, from 
unreasonable searches and seizures ;"— " that no conviction shall work cor" 
ruption of blood, or forfeiture of estate;" — " that the printing presses shall 
be free" &c. (as in the other Constitutions) — " that perpetuities and monopo- 
lies are contrary to the genius of a free Slate, and ought not to be allowed." 

[That is, no " compromise" ought to be made with them !] 

The lawyer 1 would have a hard task that should undertake 
to prove, before a Court of sound and upright constitutional 
jurists, the constitutionality of slavery in Tennessee, not- 
withstanding the aristocratic structure of the State govern- 
ment, operating to strengthen the slave power. 

Mississippi.—" We the Representatives of the people inhabiting the 
western part of the Mississippi territory," &c. &c, " in order to secure to 
the citizens thereof the rights of life, liberty, and property, do ordain and 
establish the following Constitution and form of government, and do mutual- 
ly agree with each other to form ourselves into a free and independent 
State." 

" That the general, great, and essential principles of liberty" [not sla- 
very] " and free government may be recognized and established, we declare," 
&c. 

The "declaration of rights" then proceeds to affirm — '"that 
all political power is inherent in the people," &c, (repeating 
the declaration of Tennessee with its right to "abolish" &c.) 
also that " every citizen may freely speak, write and publish 
his sentiments on all subjects," &c.-^that " no law shall ever 
be passed to curtail or restrain the liberty of speech or of 
the press" — " that? the people shall be secure in their persons, 
&c. from unreasonable seizures" that " the right of trial by 
jury shall remain inviolate" — that " every citizen has a right 
to bear arms for the defense of himself and the State," &c. 
Sec. 

To give these " great and essential principles of liberty," 
all the force of organic law, paramount to statute law, it is 
carefully added, by way of "conclusion" to this Declaration — 

" To guard against transgression of the high powers herein delegated, we 
declare that every thing in this article is excepted out of the general powers 
of government, and shall forever remain inviolate ; and that all laws conr 
trary thereto, or to the following provisions, shall be void. 



AMERICAN CONSTITUTIONAL LAW. 133 

But the Constitution itself in utter forgetfulness of these 
" essential principles" provides, that " the general assembly 
shall have no power to pass laws for the emancipation of 
slaves without the consent of their owners, unless where a 
slave shall hare rendered the State some essential service, in 
which case the owner shall be paid a full equivalent for the 
slaves so emancipated."* 

A number of curious questions might be started, here. 
Does not the declaration of rights render null and " void" 
the above provision of the Constitution 1 Or must the lat- 
ter stand, and make "void" the former ? Both can not be 
valid, of course, or if they are, the Constitution itself is 
" null" by equi-poise. 

Suppose a judicial decision, under " the great and essen- 
tial principles of liberty" which " shall forever remain in- 
violate" and of which it is declared in the bill of rights that 
" all laws contrary thereto" (not excepting the slave laws) 
" are void" — should declare the slaves in Mississippi eman- 
cipated — the question arises whether the prohibition to the 
" general assembly" forbidding them to emancipate the slaves, 
would apply to the Judicial Court ? 

What endless illustrations have we, of the utter incompat- 
ibility of SLAVERY with FREE INSTITUTIONS ! To Suppose 

them both to exist, legally, at the same time — what can ex- 
ceed the absurdity 1 And how manifest that a slave State 
can not enjoy a republican government ! 

Conclusion. 

These specimens must suffice. In a former chapter we 
cited some of the pro-slavery and other associated aristocrat- 
ic features of the Constitutions of the slave States, in proof 
that they did not exemplify republicanism, nor harmonize 
with " a republican form of government." With all due im- 
partiality we have presented the brighter features of some of 
those Constitutions, now. 

Some of those Constitutions, (that of Delaware, at least, if 
not some others,) may fairly be claimed, we think, as sub- 
versive of slavery, though containing features, even then, so 
aristocratic and anti-republican, as to warrant the interfer- 
ence of Congress, under the national." guaranty" of " a re- 
publican form of government to every State in this Union." 
And a correction of those abuses and oligarchies, in the slave 
States, would carry with it the abolition of slavery. 

In some of the slave States, then, slavery is illegal, because 

* Query. Do the Mississippiaus consider their " slaves better off" in slavery than 
if emancipated ? 



134 AMERICAN CONSTITUTIONAL LAW. 

contrary to the Constitutions of the States where it exists. 
In others of them, the Constitutions are so palpably anti-re- 
publican as to call loudly for the constitutional guaranty of 
the United States. If in others of them, the Constitutions 
are difficult of exposition, Congress has a right to demand 
distinctness and decision .* In the cases where the Constitu- 
tion is for liberty and the statute for slavery, the Congress 
has a right to demand that they shall harmonize. The " spirit 
of the Constitution" was not in quest of shells, of shadows, 
or shams, when it demanded for every State in this Union a 
republican form of government— -nor will a free people, de- 
serving the appellation, be satisfied with the mere name, in- 
ste ad of the thing signified by it. A government may be 
anti-slavery without being republican. But it can not be 
republican without being anti-slavery. 



CHAPTER V. 
THE DECLARATION OF INDEPENDENCE. 

The charter of liberty, but never claimed as a " guaranty of slavery" — The 
Declaration, a part of American Constitutional Law — Proofs of this position — 
A Constitution of government defined — The Constitution of 1776, still unre- 
pealed — Historical facts — The alternative — The Declaration of Independ- 
ence, if the act of separate States, equally fatal to legal slavery — The Dec- 
laration, never repudiated by the slave States, is still binding upon them. 

In disposing of the claims of slavery, under the Consti- 
tution of 1787-9 — we have disposed of all its pretensions to 
a " compact," " compromise" or " guaranty," on the part of 
the General Government, or of the people of the United 
States. Back of that date, and beyond the framing of that 
instrument, it never adventures to travel. It never alludes 
to the " compact" made in the " Articles of Confederation" 
in 177S, nor to the earlier " compact" of the Declaration of 
Independence in 1776. It has an instinctive dread of those 
" compacts." 

Not so with the claims of liberty and emancipation. 
They are of older date, and gain in freshness and vigor the 
farther they are traced. 

* In the correspondence of the Oberlin Anti-Slavery Committee with Hon. Win. 
Andrews, (vide Friend of Man, July 31, 1839,) we meet with the following paragraph : 

" Of all the Constitutions ever formed by the people of the Union and of the States, 
not one fails to recognize the paramount authority aud supremacy of God. To quote 
the words of every Constitution, would be laborious to us and tiresome to our readers, 
but for the benefit of those who wish to examine the matter, we refer to some of the 
articles where this recognition can be found. See Hogan and Thompson's Edition of 
the American Constitutions, pages 3, 5, 6, 13, 21, 25, 27, 48, 49, 68, 75, 95, 118, 126, 
254, 159, 182, 203, 220, 227, 262, 273, 289, 294, 318, 327, 355, 362. 



AMERICAN CONSTITUTIONAL LAW. 135 

The Declaration, a part of Constitutional Law. 

When we closed Our direct examination of the Federal 
Constitution of 17S7-9, and of the Constitutions of the seve- 
ral States, we did not close our examination of American 
Constitutional Law * This statement will doubtless sur- 
prise some, whose idea of a Constitution of civil government 
never goes beyond the piece of paper or parchment they 
have been accustomed to hear called by that technical name. 
The thought never entered their minds that the American 
people could have had a Constitution of Government, before 
the sittings of the Convention of 17S7. Still less have they 
ever suspected that any thing besides the document then fra- 
med can be properly considered as forming a part of our 
Constitutional Law, at the present time, or that any remains 
of such laio could survive the wreck of that paper, if all the 
authenticated copies of it should be lost or burned, or if, by 
any foreign invasion or domestic disorder, or dismemberment, 
the present arrangements under it should be thrown off of 
their present track. 

Definition of a. Constitution. 

" Constitutional Law" has been defined to be " the funda- 
mental principles of a government, showing the true intent, 
meaning, and end of its formation. And the effect of these 
declared principles will be to limit all authority under the 
government to their own spirit, and make whatever is done 
contrary to them unconstitutional and void."t In strict ac- 
cordance with this, is the definition of our approved lexicons. 
A " Constitution' 1 according to Webster is " the established 
form of government in a State, kingdom, or country; a sys- 
tem of fundamental rides, jmnciples, and ordinances, for the 
government of a State or nation." 

The Constitution of 1776, still Unrepealed. 

Were the United States without any thing of this kind 
until 17S7-9 % And is there no manner of connection be- 
tween the present Federal Constitution and the Constitution- 
al Law that preceded it? 

We have had a National Government ever since the 4th of 
July, 1776, a National Government that had its " Continental 

* A law volume before us hears the following title page. "Constitutional Law, 
comprising the Declaration of Independence, the Articles of Confederation, the Con- 
stitution of the United States, and the Constitutions of the several States composing 
the Union." Washington, Gales and Seaton, 1820. 

t " S eventy-siz"— a writer in the Emancipator of Jan. 4, 1833. 



136 AMERICAN CONSTITUTIONAL LAW. 

Congress" — its " Continental army" — its "Continental mon* 
ey" too, as some may remember. This National Govern- 
ment carried on a National war, appointed National officers 
to transact public affairs — entered into foreign negotiations 
— procured recognitions from foreign courts of its legitimate 
authority, and of the independence of the Nation it governed 
— made treaties, concluded a peace. 

And was this National Government without any "fun* 
damental rules, and principles'^ all this time ? Was it 
even without a written, a documentary, an authenticated, a 
National expression of those " fundamental rules and princi- 
ples V What was the " Declaration of Independence" with 
its self-evident truths, and its declared object of instituting a 
new government, founded on those principles, but such an ex- 
pression ] And what was that expression but the promul- 
gation of a Constitution ] The minute details of the govern- 
ment, to be sure, were not then fixed upon. That was left 
for the " Articles of Confederation," two years afterwards, 
and these were altered into the Federal Constitution about 
ten years after that time, other " Amendments" have been 
since added, and other changes may hereafter take place. 

In all this, has the " Declaration of Independence" been 
repealed ? If it has, then " the thirteen United States of 
America" have ceased to be such, and have sunk back into 
British colonies again. If it has not, then its essential and 
distinctive character, as the fundamental basis and ground 
work of American Constitutional Law, remains unchan- 
ged, and in full force. 

We are the same " United States of America" that we de- 
clared ourselves " of right" to be, in July, 1776. We claim- 
ed the right, on the ground of the self-evident truths we then 
recognized as the basis of the new government. If we have 
renounced those self-evident truths, or have ceased to place 
them at the basis of our National Government, then we have 
renounced the right to. have any National Government at all. 

Historical Facts. 

A vague notion prevails that, m the first place, there were 
thirteen separate, disunited States, wholly independent of 
each other, and that this condition of things continued until 
the adoption of the Federal Constitution of 17S7-9, when, 
for the first time, they became " United States," and under 

* A Constitution may either be written or unwritten, or (like the British Constitu- 
tion) partly written and partly unwritten. Common Law is the soul of the British 
Constitution. " Unwritten or Common Law — a rule of action, which derives its author- 
ity from long usage, or established custom." — Webster. 



AMERICAN CONSTITUTIONAL LAW. 137 

the authority of a General Government. But this theory is 
at war with incontrovertible historical facts, and stubborn 
chronological dates. Before the Declaration of Independ- 
ence, July 4, 1776, there were no independent sovereign States; 
and the Declaration which asserted their independence, as- 
serted likewise their union, as " United States of America," 
affirming, moreover the object of their assumed independ- 
ence to be the institution of a new government (not govern- 
ments) upon the basis of the self-evident principles then re- 
cognized.* There has been no State sovereignty that has 
not been connexed with the unity of the States, and modified 
by it. The " Articles of Confederation," that were several 
years under discussion before their adoption, were shaped 
nearer in accordance with the notion of separate State sove* 
reignty than either the Declaration of Independence or the 
Federal Constitution, yet even this document, described, to 
some extent, a General Government, but being found de- 
fective, in this very particular, the Convention of 17S7 was 
called, and the theory of the Declaration of Independence 
was, in the new Constitution, more completely restored. 

For a more minute statement of these facts, the reader is 
referred to an oration delivered at Newburyport, by John 
Quincy Adams, July 4, 1837. A few extracts from that 
oration will not only confirm what we have said, but help to 
indicate the important ends which those facts should be made 
to subserve. 

" They had been British colonies— distinct and subordinate portions of one 
great community. In the struggle against one common oppressor, by a moral 
centripetal impulse, they had spontaneously coalesced into ONE PEOPLK. 
They declare themselves such, in express terms, by this paper. The mem- 
bers of the Congress who signed their namps to the Declaration, style them- 
selves the Representatives, not of the separate colonies, but of the United 
States of America, in Congress assembled. No one colony is named in 
the Declaration, nor is there any thing on its face, indicating from which of 
the colonies, any one ot the signers were delegated. They proclaim the sep- 
aration of one people from another. They affirm the riffht of the People to 
institute, alter, and abolish their government ; and their final language is— 
1 We do, in the name, and by the authority of the good People of these col- 
onies, solemnly publish and declare that these United Colonies are, and of 
right ought to be, Free and Independent States.' The Declaration 
was not, that each of the States was separately free and independent, but 
that such was their united condition. And so essential was their Union, both 
in principle and in fact, to their freedom and independence that, had one ot 



* None of the separate States had declared independence before tins national ! dec- 
laration. The Constitutions of all the States are of later date, except that ot New. 
Jersev, which bears date July 2, 1776, but in this document no mention is made o in- 
dependent State sovereignty. On the other hand, the term colony was used both in 
the Constitution and in commissions, writs, &c, until Sept. 1,77, -wheu. an aqt oflegis. 
lature directed the word State to be substituted for colony.. 



138 AMERICAN CONSTITUTIONAL LAW. 

the colonies seceded from the rest, and undertaken to declareherself free arid 
independent, she could have maintained neither her independence nor her 
freedom. 

M And, this o*?z People did notify the world of mankind that they thereby 
did assume, ' among the powers of the earth' the separate and equal 
station to which the laws of nature and of nature's God entitled them." — 
Pages 11, 12. 

" The idea of separate State sovereignty had evidently no part in the com- 
position of this paper." — lb. page 33. 

And "the idea" of a "compact," " 'compromise," and 
" guaranty," in support of interminable despotism, for the 
purpose of bringing into the Union the States that were already 
in the Union, and had been in it for about a dozen years, 
when the Constitution of 1787-9 came into being, is " an 
idea which evidently formed no part in the composition of 
(that) paper." 

We have heard Mr. Adams' testimony that the Declara- 
tion of Independence established a National Government for 
° the United States of America." Let us now hear his tes- 
timony concerning the character of the government then and 
thus established. 

" The elements and principles for the formation of a new government, 
were all contained in the Declaration of Independence, but the adjust- 
ment of them to the condition of the parties to the compact, was a work of 
time, of reflection, of experience, of calm deliberation, or moral and intellect- 
ual exertion," &c. — Page 28. 

In other words, the Declaration of Independence compri- 
ses and embodies the fundamental " elements and princi- 
ples" of American Constitutional Law. The adoption 
of the "Articles of Confederation," first, and of the "Constitu- 
tion" of 1787-9, afterwards, are to be regarded in the light 
of" exertions" for the " adjustment" and proper application 
of these great principles of Constitutional Law. These prin- 
ciples, asserted in the original Declaration of 1776, when the 
nation came into existence, continue to constitute now, (as 
they always have done, and will continue to do) the vital es- 
sence, the pith, the marrow, and the substance, of our Con- 
stitutional Law. The mere outward form, the minutely de^ 
tailed provisions of the subsequently written Constitution — > 
these are but the instruments, of which those principles are 
the living spirit and substance. To accept of the former as 
a substitute for the latter, and to their exclusion would be to 
accept of the shell, and 'throw the kernel away — to idolize 
the instrument and spurn the bleasings it was intended to 
procure for us. Let us hear from Mr. Adams again. 

" The Declaration of Independence first organized the social compact on 
the foundation of the Redeemer's mission on earth. It laid the corner stonb 
of human government on tks first principles of Christianity "—Page 6-. 



AMERICAN CONSTITUTIONAL LAW. 139 

How could it do this, if its authority were not to be recog- 
nized, as comprising fundamental Constitutional Law 1 Speak- 
ing still of the Declaration, Mr. Adams says, again :— 

" For the first time since the creation of the world, the act which consti- 
tuted a great people, laid the foundation of their government upon 
the unalterable and eternal principles of human rights." 

That which " constitutes" and " lays the foundation of gov- 
ernment"^- must be called a Constitution of goternment, so 
long as words are used to signify things and convey ideas* 
One extract more must suffice. 

" The Declaration itself did not even announce the States as sovereign, but 
as united, free, and independent, as having power to do all acts and things 
which independent States mayo/ right do. It acknowledged, therefore, A 
rule of right, paramount to the power of independent States, and virtu- 
ally disclaiming all power to Do wrong. t This was a novelty in the moral 
philosophy of nations, and it is the essential point of difference between the 
system of government announced in the Declaration of Independence, 
and those systems which had until then prevailed among men.t A moral 
Rider of the Universe, the Governor and Controller of all human power 
is the only unlimited Sovereign, acknowledged by the Declaration of In- 
dependence, and it claims for the United States of America, when assuming 
their equal station among the nations of the earth, only the power to do all 
that may be done of right. 7 ' — Page 26. 

How much of a "compact," " compromise," toleration, or 
" guaranty" in favor of slavery — the acknowledged " sum 
of all villanies" — may be made and entered into, " of right" 
we need not stop to inquire. No person of sane mind and 
sound morals could mistake so plain and palpable a point. 
Nor will any one worth arguing with, or answering, pretend 
that there can be constitutional or legal slavery in any State, 
Province, District, or Territory, where our American " De- 
claration" of self-evident truths, and of inalienable human 
rights is to be regarded as holding the authority of Consti- 
tutional Law. 

The courts of Massachusetts have settled that question, 
long ago; and the same Declaration of self-evident truths 
that makes slavery illegal and unconstitutional in Massachu- 

* Whether Mr. Adams would agree with us in calling it a Constitution, we can not 
say. But we insist that he has stated the fad correctly, and that the existence of such 
a fact is equivalent to the existence of a constitution of civil government. If our prem- 
ises are attested by those who dissent from our conclusions, the proof of those premi- 
ses is so much the stronger, and of our conclusion's, our readers will judge for them- 
eelves. 

t Mr. Adams had previously noticed and repudiated the doctrine of British lawyers 
that " sovereignty is identical with unlimited and illimitable power"—'- the principle, 
the resistance to which was the vital spark of the American revolutionary cause." 

% In this sentence, you may substitute the words Constitution and Constitutions in 
■the place of system and systems, without changing the meaning : that is, if Xoah W eb- 
ster knew the meaning of the words. See his Dictionary, as before quoted. 



140 AMERICAN CONSTITUTIONAL LAW. 

setts, makes it illegal and unconstitutional in the District of 
Columbia, and in Georgia, and. throughout all the "United 
States of America" — by whom that Declaration was made. 

The Alternative.— The Declaration of Independence, 
if the act of separate states, equally fatal to 
legal slavery. 

So far as the illegality of slavery in the United States is 
concerned, it will not materially change the result, if we take, 
by way of supposition and as a basis of argument, the theory 
concerning State sovereignty and the Federal Government, 
the most opposite to the one that has just been msintained. 

We will suppose then that the Declaration of Independ- 
ence had been the declaration of separate, disunited States ; 
each State acting by and for itself alone. To make the case 
as strong as possible we will suppose that on or about the 
4th of July, 1776, there had been no " Continental Congress" 
but that each separate colony in its separate Congress assem- 
bled, had promulgated its Declaration of Independence, of 
self-evident truths, of inalienable human rights, and of sepa- 
ration from Great Britain, for the object of establishing gov- 
ernments based on those fundamental principles or truths, 
and for the security of those rights. 

In that case we should have had, (in these thirteen sepa- 
rate Declarations of Independence, of self-evident truths, of 
human rights, and of the establishment of new governments 
on the basis of those truths and rights,) thirteen distinct con- 
stitutions of government, of the same character with the Con- 
stitution of Massachusetts, which abolished slavery in that 
State. Such being the fact, the Federal Convention of 1787 
could have found no legal slavery in existence to form a 
"compact" or "compromise" about — to "guaranty" or to 
tolerate. 

And even if we should not insist upon the technicality of 
a " Constitution" or of " Constitutional Law," (either State 
or National,) in this matter — the same result will not be vi- 
tally changed. It will still be true that there is no legal 
slavery in any one of the thirteen original States, and con- 
sequently none in the new States growing out of them, or 
founded by them. 

Whether the act of a State be called a Constitution, or a 
statute, an ordinance or a declaration, it nevertheless remains 
an act of the State, and carries with it the authority and 
power of the State. And since no one disputes that on the 
4th of July, 1776, the Declaration of Independence, so famik 



AMERICAN CONSTITUTIONAL LAW. 141 

tar to us all, teas actually made by the thirteen States, it fol- 
lows that by the power of that act, SLAVERY WAS 
ABOLISHED in each and every one of those States, and 
has been illegal ever since, because slaves, once emancipa- 
ted, can not be re-enslaved by any subsequent act. No one 
supposes that Massachusetts, Connecticut, or New York, 
could now legally reduce again to slavery the persons or 
the posterity of those whom they have once emancipated. 
And the more strongly the slave States insist that the Dec- 
laration of Independence must be considered the act of the 
separate sovereign States, and not the united act of the 
" ~Pcople" of the United States, northern and southern, the 
more strongly do they claim the glorious act of the aboli- 
tion of slavery, in 1776, as their own act ; the less cause 
will they have, of complaint, as though it were forced upon 
them by stress of circumstances and by the urgency or the 
overpowering predominancy of northern votes ; and at all 
events, and either case, they may congratulate themselves 
that the act of emancipation was drafted by one of their 
most honored citizens, so that they should not feel themselves 
aggrieved if "fall faith and credit shall be given, in each 
State, to the ])ublic acts, records, and judicial proceedings of 
every other State," agreeably to the provision of the Fede- 
ral Constitution, Article 4, Section 1. 

The "Declaration," never ♦repudiated by the slave 
States, is still binding upon them. 

Whatever theory we adopt, therefore, it remains true that 
there has been no legal slavery in the United States, since 
the 4th of July, 1776. Having been abolished then, there is 
no power, or authority, either State or National, that could 
have established it since. There is nothing, either in the 
Articles of Confederation of 1778, or in the Constitution of 
1787-9, that even professes to have done so, or that recog- 
nizes the legality of any slavery then existing. By no pub- 
lic act did either of the thirteen States that put forth the 
Declaration of Independence, in 1776, signify to the Nation 
or to the world their renunciation of that Declaration, or of 
any truth, principle, or doctrine contained in it, or their de- 
sire to be considered as not being bound by it, up to the 
time of the framing and ratification of the Federal Constitu- 
tion : no : nor have they done so, from that day to this ! 
Having assented to the Federal Constitution without any 
such renunciation, disclaimer, or repudiation of their eman- 
cipation act of 1776, it ill becomes any of the States to com- 



142' AMERICAN CONSTITUTIONAL LAW. 

plain that their most honorable act, is considered as binding 
upon them, now ; and that they should be expected, (accord- 
in"" to the express provision of the Constitution of 1787-9, 
which they assisted to frame and having ratified) to maintain. 
" a republican form of government'" in accordance with the 
definition of such government which their own Declaration 
of Independence, of self-evident truths,, and of inalienable 
human rights, is well known to contain. The world and the 
Nation, have a fair right to hold them bound by their act of 
1776, and to consider and treat all the slavery existing since 
that date as existing in violation of law, and of their own 
most solemn declarations and plighted faith. Having adopt- 
ed the Federal Constitution without any repudiation of their 
former declarations and principles, the public sentiment of 
the civilised world should require of them that they construe 
that Constitution in accordance with those principles, and 
abide by- its provisions, as thus construed. 



CHAPTER VL. 
OF SLAVERY UNDER COLONIAL AUTHORITY. 

ITS LEGALITY QUESTIONED. 

By what authority, or by^vhat right, did the colonists or 
the colonial legislature maintain slavery ? Was that author- 
ity derived from^ the Crown, Parliament, Judiciary or usa- 
ges of Great Britain % If not, from whence was it derived, 
while the colonies recognised their colonial obligations- to 
the parent State ] They claimed no right of sovereignty, 
then. 

It will hardly be maintained, except by the school of Mc- 
Dume, that the right of slaveholding, or of enacting slave 
laws, is derived from the law of nature or of divine revelation. 
No lawyer ever thought of going to the " Common Laiv" for 
a warranty of slavery or of slave laws. 

Undoubtedly the claim was, and is, that slavery was sanc- 
tioned and legalized by the parent State. A standing apol- 
ogy for American slavery has been found in the fact that 
English slavers were permitted by the British Government, 
to visit the colonies, with cargoes of slaves. This has even 
been called forcing their slavery upon us, just as though we 
were obliged to buy what the slavers were permitted to offer 
us. The original draft of the Declaration of Independence, 
% Mr. Jefferson, made it one of the grave charges- of the- 



AMERICAN CONSTITUTIONAL LAW. 143 

colonies against the King of Great Britain, and one of the 
proofs that he was a tyrant, and not fit to govern a free Peo- 
ple, that he permitted this traffic to be carried on. 

If there be any force or propriety in complaints of this 
nature against the Government of Great Britain, it must he 
because the legality of slavery in the mother country made 
it difficult or impracticable for the colonial authorities to de- 
clare it illegal., 

But slavery in England was abolished, in the judicial de- 
cision of Somerset's case by Lord Mansfield in 1772. It was 
abolished on the broad principles of Common Laic. The 
decision therefore was, that slavery never had been legal, in 
England ! It was, in fact, a re-affirming of an old decision, 
in the case of Gallway versus Caddee. before Baron Thomp- 
son, at Guildhall, as early as 1699, thirty years previous to 
the counter opinion of York and Talbot, in 1729* 

As slavery therefore, never had been legal in England, how 
could it ever have been legal in the colonics ? The colonists 
brought the Common Law of England to this country with 
them, and their recognition of it, as a rule of judicial pro- 
ceedings, was among their most cherished rights. If slavery 
was illegal in England, because it was contrary to the Com- 
mon Law, how could it be legal in the colonies, where the 
authority of the same Common Law was recognized % And 
if the English courts could discover and decide its illegality, 
why could not the colonial courts do the same % And why 
were they not bound to do. it, as well as the courts in Eng- 
land ? The Common Law declares that " human laws are 
of no validity if contrary to the law of nature, which is co- 
eval with mankind, and dictated by God himself." If this 
principle was permitted to be recognized, even at the Court 
of King's Bench, is it credible that there was any authority 
in colonial legislation too high and too sacred to bow to the 
same principle when enforced by a colonial court I 

Whatever plea of deference to English decisions might 
have availed for the colonies or their courts, up to 1772, the 
memorable decision of that period left them without that 
excuse, afterwards.! Chief Justice Shaw of Massachusetts, 

* Vide C. Stuart's life of Granville Sharpe, pa« 

t It may he pleaded, perhaps, that the delay of <ireat Britain, until 1807, wholly to. 
prohibit the foreign slave-trade, ami until very recently to abolish her colonial slavt rv, 
prevented the Judicial decision of 1772, abolishing slavery in England, from 
held as a precedent, by the colonies. Tins criminal delay qj Great Britain, \\ • >hould 
neither excuse nor imitate, a- we should doj were we longer, as a nation, to permit, in 
any portion of our empire, a violation of our great Xntio.nl "compai t" of 1776. But 
why was the interference of tiie British Parliament need.,!, in the matter of b 
nial slavery, but because the colonial i ''art- failed to follow, :>- they should have (lone, 
the precedent of the Somerset ease ? The fact that English soil was kept tree from 
slavery whilst existed in thcWc^t Indies, proves that Virginia gqjj) might have been 



144 AMERICAN CONSTITUTIONAL LAW* 

in his opinion on the case of the Commonwealth vs» Thomas 
Aves, [vide Pickering's Reports, page 209-10, already quo- 
ted,] is inclined to think that the Judicial abolition of slavery 
in that State, soon after the Revolution, may have been made 
"by the adoption of the opinion in Somerset's case, as a decla- 
ration and modification of the Common Law." If an Ameri- 
can Court might do this, after the separation from Great 
Britain, why not before ? 

These questions will have been understood as preparatory 
to another, viz : Whether there ivas any legal slavery in the 
colonies during the four years from 1772 to 1776 % 

If there teas, then the Common Law permitted in the col- 
onies, what the same Common Law would not permit in the 
mother country. If there was not, then there is no legal slave- 
ry in the United States of America now, unless the Declara- 
tion of Independence, and the glorious Revolution have in- 
troduced it again, or stood sentinel against the CoramonLaw, 
to prevent it from discharging its proper functions ! And 
if this may be believed, what may we refuse to believe 1 

But on these points we shall not stop to insist. We leave 
it for the lawyers to decide. Such of them as can find le- 
gality in slavery any where, may contrive to find it every tv7iere, 
for aught we can tell. 

Whoever would discover the legality of slavery must pur- 
sue his inquiries further back than the Constitution of 'S7 — 
the Declaration of '76 — or the decision of '12. On the coast 
of Africa, and in the perpetration of deeds which, if proved 
in a Court of Justice, would swing up the perpetrators, as 
pirates, to the yard-arm, by the laws of all civilized nations 
there it is, and to those acts that we must look, if any 
where, for the ground and origin of latuful slavery* 

And as to colonial authority the question is not so much 
where the colonies could find authority and power enough to 
abolish their own slave laws — as where they could find author- 



* " Sir William Blackstone examines those causes of slavery" (crimes, captivity and 
debt, as cited by Paley) "by the Civil Law, and shows them all to rest on unsound 
foundations, and he insists, that a state of slavery i* repugnant to reason, and tho 
principles of natural law. The Civil Law, admitted it to be contrary to natural right, 
though conformable to the usage of nations." — KenVs Commentaries, page 247. 

[And since, by Common Law, " human laws are of no validity, if contrary to the law 
of nature," the "usage of nations" can not make slavery legal.] 

" Opinion of Marshall, C. J. in the case of the Antelope, 10 Wheat. 120. He is 
speaking of the slave-trade, but the remark itself shows that it applies to slavery, 
' That it is contrary to the law of nature will scarcely be denied. That every man 
has a natural right to the fruit of his own labor, is generally admitted, and that no 
other person can rightfully deprive him of those fruits, and appropriate them against 
his will, seem3 to be the necessary result of the admission.'" — Pickering's Reports, p. 
211. Quoted in opinion of C. J. Sham, case of the Commonwealth vs. IViomas Aves. 



AMERICAN CONSTITUTIONAL LAW. 145 

ity and power enough to tnact therrl ] Such authority and 
povver " the English Common Law," (the paramount law of 
the realm,) does not concede to the Monarch and Parliament 
of Great Britain* 



CHAPTER Vtl. 

Nature and foundation of government 

AND LAW. 

Parchments, papers, precedents — Whence their authority ? Compacts— - 
on whom binding? — -Government as an ordinance of God — The " social com- 
pact" an exploded fiction — A more substantial theory needed — Where shall 
we find it? — 'Civil government a science; compared with other sciences- 
Has its foundation in facts — Nature and relations of man — Scripture proph- 
ecy — First principles immutable — Can not be set aside by compacts and 
parchments — Recognized by Common Law — What is Common Law ?— 
Whence its paramount power? — One universal law — Founded on the Divine 
Will— Constitution of civil government not arbitrary — Absurdities can not 
become law — Law cart not be created by man— can only be discovered, obey- 
ed, and applied — Harmony of our National Documents with these principle* 
—Objections considered. 

Parchments— Papers — Precedents, &cc. 

We have been speaking of law — of government — of consti- 
tutions of government — -of things legal and illegal. And, in 
doing this, we have hitherto been chiefly occupied in expound- 
ing papers, parchments, documents, records of things done or 
agreed to be done, somewhere, and by somebody, before ihe 
greater part of the present generation were born. We have 
looked into books, cited authors, authorities, usages, piecedents, 
customs. 

It is high time to ask ourselves whether this is all we 
know or may know, of law, government, constitution (or 
principle) of government — of the legality — illegality — valid- 
ity— dr nullity of Statutes or enactments claimed to be laws. 

Does the pith and gist of the matter lie in the paper — the 
parchment % Or lies it in something beyond, or back of the 
parchment, or the paper I Have we found the thing, when 
we have found the parchment, the paper, or have we found 
only what purports to be a statement, a description of the thinp: 
itself] J 

If there should happen to be a mistake in the paper — if 
there should be knavery or stupidity, or accidental blunder 
in the printer or penman of the document, have We no rem- 
10 



146 AMERICAN CONSTITUTIONAL LAW. 

edy but to take it as it is, for better or for worse 1 Are tbere 
no things, to which we can gain access, ourselves, to correct 
the blunders that may have been made, by others I If not, 
who can tell whether or no the printers, the penmen, or those 
who set them at work, had access to any such veritable real- 
ities, themselves, or whether they spun the whole web out 
of their own brains \ 

Compacts—on whom binding 1 

And whence the binding authority of laws, constitutions, 
and governments ] You prove to me that a certain " com- 
pact" was made some fifty years ago, while I was an infant, 
or before I was born. You authenticate to me the fact. 
Very well. But how does that fact bind me, who had no 
part in, the bargain 1 If, as is often said, the whole authority 
of civil government is founded in " compact," how can that 
authority be binding on any persons except those by whom 
the compact was made 1 Suppose I do not choose to come 
into the " compact," what have its provisions to do with me ? 
My being born in the country where the " compact" was made, 
does not render me a party to the compact. I had a right 
feo be born, when and where my Creator saw fit, and am not 
beholden to the makers of paper compacts for my right to he 
where Divine Providence has placed me, and to be a man, 
on my own proper account, and behoof. My good father or 
grandfather, (peace to their ashes,) may have signed the 
compact, as they had a right to do, if they saw fit, But they 
stood in their own shoes, and I stand in mine — as truly a 
man as either of them, with the same unimpaired powers — 
with the same high responsibilities to my Creator, to my 
country, and to my race, that they had. They had no power 
to make me less of an independent man, and a voluntary 
free agent, than they were, themselves. And they have not 
done it. 

Thus, at least, men will reason, (and have reasoned,) when 
they wish to throw off the obligations, either of civil govern- 
ment in general, or the particular government they live un- 
der, or any enactments which they think oppressive, or which 
they dislike. Aqd it might be very convenient to have some- 
thing more logical to confute them with, than papers and 
precedents, something more august to overawe them than 
full bottomed wigs, (now grown into disuse,) something more 
satisfactory than gibbets, something more philosophical and 
more. Christian than powder and ball, especially when wield- 
ed as substitutes for the right, instead of instruments of «#£<■ 
2?ressing the wrong. 



AMERICAN CONSTITUTIONAL LAW. 147 

And most manifestly, civiL government must have some 
other and higher authority than " mere compact" if we would 
claim for it the reverence due to " an ordinance of God." 

" Social Compact" a Fiction, &c. 

The date, moreover, and the locality of that great towiv- 
meeting of the human race, in which it was agreed to emerge 
from " a state of nature" and " enter civil society" with " a 
part of their rights surrendered for the better protection of 
the rest" — (as the old legend hath it,) is a matter that the 
paper and parchment records have never yet reached. The 
recent explosion of that wretched fiction of the old writers 
of civic romance, has left a vacuum in the theory of govern- 
ment, as existing in the literature of the age, which it is high 
time to fill up with substantial truth, if the high obligations 
of government and of law are to retain any hold upon the 
ever progressive popular mind. 

Who can tell us whether there he any such substantial truth 
to inculcate, unless our conceptions of government, of con- 
stitution and of law,, can run back of mere libraries and pre- 
cedents, of legislative enactments, of legal decisions, of con- 
ventional agreements, and fasten hold of something of which 
all these are but the exponents, the declarations, the expres- 
sio?is % 

Civil Government, a Science, &c. 

In every other department of human activity and of human 
science, it is expected that the operator and the student 
should be able to fix his grasp upon something in the form of 
fixed realities, besides the mere papers and books that profess 
to give him an account of them. He is expected to examine 
the things for himself, and to use his parchments only as 
means to facilitate this examination. Why should the science 
of government be an exception ] 

The practical mariner, with his chart of the Indian Ocean 
before him, never mistakes his chart for the ocean, itself. 
He explores the ocean, with its rocks, reefs, and islands, by 
the help of his chart, but never gives the credit to his chart 
of being more correct than the ocean> when he finds reefs 
and islands in the latter, that are not laid down in the for- 
mer ! He does not substitute the paper description of the 
thing for the thing itself. W r hy should the ship of State be 
guided by a petty pedantry that would be derided by the 
rudest sailor before the mast] With eyes to survey the 
great "self evident truths" of political science, why should 



148 AMERICAN CONSTITUTIONAL LAW. 

statesmen or jurists, deserving the name, run the common* 
wealth, (committed, with all its vast interests, into their 
hands, as pilots) into the midst of the thick breakers, and 
rocky reefs, plain in sight before them, merely because they 
can not find them marked out distinctly, on their antiquated 
paper charts 1 

What would be thought of the mathematician who should 
identify the sciences of arithmetic, or geometry, or algebra, 
with his book, his approved and highly authoritative booh on 
those subjects] Who should never speak of "arithmetic" 
with any higher meaning to the word than the book he holds 
in his hands 1 But such a village pedagogue, could we find 
one, would well deserve a place beside the grave senator, 
or the learned judge of the Supreme Court, who has no 
higher meaning to the phrase, "the Constitution of the United 
States" than the written or printed parchment or paper, 
agreed upon, and drawn up by the Convention that assem- 
bled in 1787— forgetful that a Constitution of Government, like 
a theorem in algebra, or a fact in chemistry or botany, or 
zoology, or astronomy, is a palpable, veritable, existing fact , 
whether any books or papers have described them correctly, 
or undertaken to describe them at all. 

And this opens before us another series of questions^— 
which the present generation will have to decide upon, and 
in the decision settle the destinies of their country perhaps 
for ages to come. Their decision will not alter the facts and 
principles upon which they are called to decide. But it will 
fix the condition of the Republic, by determining its adjust* 
ment to those unchangeable principles and facts. 
Natures and relations op Man. 

The problem may be stated in some such queries as these 
— Is there, after all, any thing, in the social nature of man, in 
the relations of man to man, in the duties growing out of 
those relations, (duties therefore, imposed upon man by the 
author of his being,) which lay a foundation, (as they create 
a moral necessity) for such a science as that of civil gov- 
ernment, a science as fixed and determinate, in the nature 
of things, as any of the other demonstrative sciences, based 
upon "%7f evident truths" a science no more to be altered 
by parchments, or conventional arrangements, or precedents, 
than the sciences which enable the persons acquainted with 
them to traverse land and ocean by steam— a science which 
written constitutions, enacted statutes, and recorded deci- 
sions, can more or less correctly or incorrectly describe (or 
perchance contradict) but can never alter nor change. 



AMERICAN CONSTITUTIONAL LAW. 149 

Unless there be such a science of legislation and of law, 
which mankind can be taught, can %mderstand, and can apply, 
then civil government itself becomes a cheat, and legislation 
becomes a farce, and jurisprudence becomes an usurpation, 
which the onward and rapid march of mankind must speedily 
detect, and woe to the conservators of a law and a govern- 
ment that shall prove themselves to be such contemptible 
shams, then. 

Scripture Prophecy — Principles Immutable. 

If the period ever arrives — (and the harp of prophecy hath 
hymned it — the plighted word of Jehovah hath spoken it) 
that the kingdoms of this world shall become the kingdoms 
of our Lord and of his Christ — controlled by his righteous 
laws, wielded for the fulfilment of his benevolent- purposes 
of equity, mercy, peace on earth and good will to man, that 
period will be ushered in by a correct knowledge and an 
honest application of those first principles of civil govern- 
ment which are as immutable and as moveless as the throne 
of God himself, which recorded precedents can no more 
modify than they can the courses of the stars, which conven- 
tional compacts can no more eclipse or blot out, than they 
can the sun and the moon, which enacted statutes can no 
more repeal than they can the laws of gravitation, which ju- 
dicial decisions can no more cancel offset aside, than they 
can the downward rush of the torrent, or the flight of the 
winged lightnings of heaven. The kingdoms, or the pre- 
tended republics that will not honor these principles, identi- 
cal with the laws of God, shall come to nought, those na- 
tions shall utterly be wasted. They shall be wearied with 
their own way, and filled with the fruit of their own doings. 
But the meek shall inherit the earth. The upright will He 
guide in his way, and by righteousness (a practical regard to 
the right) shall the nations of the saved be exalted. 

The conceptions of civil government thus spiritual and 
sublime, by what means, by the use of what symbols, shall 
the present generation of statesmen and jurists be raised % 
Deep buried under huge folios of precedents and of records, 
of technicalities and of conventionalisms, in the fog of ever 
calculating but never calculated expedients and expedien- 
cies, in the slough of never ending bargains and barters, in 
which the needy are sold for a pair of shoes and the fruit of 
righteousness turned into hemlock, — with what parchments, 
with what papers, with what documents, with what records, 
with what enactments, with what decisions — save those of 



150 AMERICAN CONSTITUTIONAL LAW. 

the sacred scriptures, that they trample under their hoofs, 
shall such a generation of jurists and statesmen be reached % 

Common Law, secret of its power. 

The volumes of the Common Law, doubtless, embodied and 
re-echoed as they are in our own Declaration of Indepen- 
dence, and in the Preamble of the Federal Constitution, 
technically so called, come the nearest to the instrumentali- 
ties we are seeking, of any thing within our reach. Our 
jurists, (aye, and our statesmen for the most part,) have heard 
of the Common Law, and have learned something of its au- 
thority and power. And the very soul of the Common Law 
is identical with the fundamental truths we would insist upon. 
For what is the Common Law, the highest standard of ap- 
peal in our civil courts — the Common Law, that corrects hoary 
abuses, reverses judicial decisions, annuls statutes, revises 
charters, repeals parchments, abolishes omnipotent parlia- 
ments with its presence, and annihilates royal prerogatives 
with a nod — the Common Law, that Luther like,looks confed- 
erate emperors in the face, and to their most authoritative 
mandates answers, calmly, " no !" The Common Law that 
stepping into the Court of King's, Bench, and taking up the 
slave code, avers, solemnly and decidedly that there is not 
power nor authority enough in the British Government, 
Kings, Lords, Commons, Judiciary and all, to make that in- 
iquitous code, legal ! That says this, and id obeyed ! 

From what source is this mighty and resistless power of 
the Common Law derived] Did King and Parliament that 
are overawed in its presence, at any time, enact the authority 
they hate, and before which they cower 1 When Common 
Law would present its credentials, does it show a commis- 
sion signed by the dignified officials on the bench to whom 
it gives law, and whom it claims as its servants 1 

Or is it to the book makers, the compilers, the learned re- 
corders, the writers, the printers, the publishers, or the hawk- 
ers, of Common Law maxims, that we must look, for the 
sources of the high authority with which they are clothed % 
Let us open our eyes to the fact that the Common Law is 
superior, and paramount, and prior to all these — that she 
" teaches as one having authority, and not as the scribes" — 
the mere copyists or commentators of parchments — that she 
speaks in her own name, or rather, in the name of universal, 
essential, uncreated, unalterable laic, in the other words, in 
the name of the most high and eternally supreme God. 

Common Law has power, not because it is printed in cer- 
tain antique volumes of sheep-skin, that the librarians pre- 



AMERICAN CONSTITUTIONAL LAW. 151 

serve and that the courts reverence, but because it is the voice 
of the Creator, speaking through the human nature he has 
created^ — the voice of human conscience and of common 
sense, uttered and engraven by human siiffering and human 
necessity, demanding justice, equity, redress of wrongs, at 
the hands of those who undertake to govern men, and de- 
manding it with an importunity that has forced open the ears 
and subdued the spirits even of unjust judges that fear not 
God, nor regard man. Such in a word (instead of a volume) 
is an epitome of what might be denominated, by way of tit- 
tle page, the " national history of the Common Law," — a his- 
tory by no means confined to the Anglo-Saxons, but co-eval 
with the history of man's struggles for his rights, the world 
over. Even in China itself, there is a Common Law* that the 
Emperor may not annul — that the Emperor must needs obey. 
One Universal Law. 

An expansion and purification of this idea of Common 
Law may introduce to us, the one tiniversal lata — the law of 
nature sometimes termed — under which all nations are 
placed — a law from which civilization and the social state 
does not release men — a law which it is the sole business of 
civil government to ascertain and enforce, in the execution of 
justice, between a man -and his neighbor. " The rightful pow- 
er of all legislation," says Thomas Jefferson, " is to declare 
and enforce only our natural rights and duties, and take 
none of them fro?n us. When the laws have declared and 
enforced all this, they have fulfilled their functions." This 
universal law, then, is the only law. Whatever conflicts with 
this, is to be repudiated (as say likewise the writers on Com- 
mon Law) " not as being bad law, but as being no law !" 
Hence, nothing subversive of equity deserves the name of 
law, or is to be treated as law, by any of the officers, the 
Judges, or the executors of law. There is, and there can 
be, no valid or binding law, at variance with justice or equi- 
ty, either on earth or in heaven. 

Source of Law, in the Divine Will* 

Power belongeth unto God. All rightful rule and author- 
ity are from him. By bestowing social and moral existence 
on man, he has, of necessity, imprinted the law of that social 
and moral existence upon them. By giving them the nature 
they possess, he has bound them by the law of that nature. 

In the parlance of the Canton merchants — " old custom" — founded on common no- 
tions of equity—- which the mandarins or magistrates ate expected to see enforced. 
This Common Law of China goes far to counterbalance and hold in check the other- 
wise unlimited despotism of that empire. 



152 AMERICAN CONSTITUTIONAL LAW. 

By establishing the relations they sustain to each other, he 
has indicated the duties they owe to each other. Among 
these duties is the duty of the COMMUNITY (not a select 
portion of them) to see that the rights of each member of the 
community is respected, and uninfringed. From the plagues 
of Egypt to the present hour, the universal history of the 
providential government of God, over the nations, attests 
this great truth that it is the MASSES and not the officials 
merely, of the nations, that God and nature hold responsible 
for the executing of just judgment. Fealty to justice, not to 
parchments is the constant burden of his requisitions. 

Constitution op Government not Arbitrary. 

If this be a truthful account of civil government, then the 
Constitution of civil government has a. foundation in nature — 
that is to say, in the divine will. It is an existing matter 
of fact, as much so as is the Constitution of the human body. 
Of the latter, the physiologist, (Dr. Combe for example) may 
have given a more or less reliable account, in the books they 
may have written.- Of the former, the Convention of 1787, 
may have traced, more or less correctly, the outlines, and in- 
dicated the appropriate details. In the former case, an in- 
dividual, in the latter case, a convention, and afterwards an 
entire nation, assumed the responsibility of the statements. 
Both are statements and not creations, nevertheless. The Fed- 
eral Convention, and " we the People of the United States" 
could no more make a Constitution of civil government, oufe 
of a cloth of our own fabric, and upon any principles that 
mio-ht suit our own selfishness or caprice — a Constitution 
that should be valid and binding ; than Dr. Combe and an 
university of physiologists could make, at their own whim 
or pleasure, a constitution of the human body, that should 
be binding upon all the anatomists and surgeons of a nation 
or on all who should have occasion to contract their muscles 
and move their limbs !^-In both cases, it is God who has 
made the constitutions. All that men in either case can do, is 
to learn, to teach, and to use them. 

As much as this, the Coimnon Law says, when it denies 
that human authorities can make wicked and unjust laws, 
that can be binding and valid. As much as this, the Decla- 
ration of Independence, by obvious implication says, when it 
claims for the new Republic the power to " do all acts and 
things which independent States may, of right, do." As 
much as this, the Preamble of the Federal Constitution re- 
cognises, ancl the same is. supposed V& the provision, to cor-. 



AMERICAN CONSTITUTIONAL LAW. 153 

rect its own mistaken statements of "justice" l>y " amend- 
merits" of its provisions. 

ABSURDITIES CAN NOT BECOME LAW, 

Why should any men stultify themselves, or degrade l)y 
broad caricature, the claims and prerogatives of that civil 
government they would teach men to respect, by inculcat- 
ing the reverse of this doctrine ] How would they have us 
regard a provision of a paper Constitution that incidentally 
(by way of describing a boundary line, for example) should 
bid us locate the river Ohio west of the Missouri, or the 
Rocky Mountains east of the Mississippi 1 Would our judg- 
es and jurors, in all coming time, be obliged thus to regard 
and describe them] Suppose there were a constitutional 
*'• compact" or a legislative enactment, that the three angles of 
every right angled triangle should be " deemed, taken, re- 
puted, and adjudged in law to be" equal to. seven right angles, 
would the provision be binding 1 Could it be made " Con- 
stitutional Ltaw V* Suppose it were provided that all ele-> 
jrftants should henceforth be mice, and that men should hence- 
forth be things, — immortal spirits, chattels personal ! Could 
either of those provisions become lata 1 To say so, would 
be to deny the distinctive characteristics of law itself ; to say 
that it is not to be defined either by order, by fitness, by- 
truthfulness, or by rule : — that it is, in no way, distinguish- 
able from waywardness, from falsehood, from lawlessness—, 
from caprice ! 

Man may discover, but not create, law. 

The alchymists of the dark ages supposed it possible to 
obtain by compound, a substance, which they called the 
philosopher's stone, the touch of which should transmute 
whatever it touched into gold! We smile and wonder at 
their folly, and we may justly claim that, except in the science 
of jurisprudence, the world has made some creditable pro- 
gress, since the times of the achymists. But in the midst 
of the nineteenth century, under the light of the Christian 
scriptures, in the presence of the Common Law, and almost 
seventy years after the glorious American Declaration of 
self-evident truths, and inalienable human rights, it is still 
held and maintained by grave and learned men, that certain 
pieces of parchment or paper, emanating from certain 
places, and prepared by certain hands, possess the power of' 
transmuting whatever folly or selfishness may have been 
pleased to write upon them into valid and authoritative law ! 
JIave power to counteract creative wisdom and goodness,. 



154 AMERICAN CONSTITUTIONAL LAW. 

by transforming an immortal man into a thing ! Compared 
with this dream of the jurists of the nineteenth century, the 
dreams of the alchymists of the eleventh century may almost 
be pronounced philosophical as well as harmless. 

The time, however, Can not be far distant, when these mat- 
ters will be better understood — when legislative and judicial 
halls will be occupied in the rational task of learning, declar- 
ing, and applying to the affairs of men, the great principles 
of eternal, immutable law, rather than in vain attempts, 
either to create, or to Annul it. To establish a manufactory 
and to commission manufacturers of laws for the government 
of the solar system, laws for the government of mineral, 
vegetable, or animal existences, chemical laws, or laws of 
hydrostatics ; all this might pass for a rational amusement 
(as it seems indeed to have been the amusement of philoso- 
phers, before Lord Bacon's time) in the comparison with 
the still current usage of attempting to manufacture Consti- 
tutional Law, the law by which the social relations of man, in 
political communities, must be governed ! When shall the 
inductive instead of the constructive and hypothetical philos- 
ophy be applied to the science of government ! When will 
men see that they can only discover and obey, not construct, 
the laws of the political world ! That their paper constitu- 
tions can only teach and declare, not originate, the fundamen- 
tal principles of a civil government ! 

To the case in hand. Human beings can no more con- 
struct a civil government, with binding authority over human 
beings, yet without the power to "-execute judgment between 
a man and his neighbor," than they can construct a globe 
without the quality of roundness, or a cube without its six 
sides. Abortions and absurdities they may multiply as they 
please. "There is no authority but of God," and the au- 
thorities that be (that truly possess any binding authority) 
"are ordained of God." These "are a terror not to good 
works, but to the evil." They are "the ministers of God" 
"attending continually upon this very thing," and on no 
other ground, and in no other character, can they rightfully 
Claim to be recognized, or deserve the "tribute" of support. 
[Paul, in Rom. XIII, 1—9.] A Constitution of civil govern- 
ment, therefore, that tolerates slavery, is an absurdity tliat can 
not exist. 

Our National Documents. 

With these plain principles of common sense, of Common 
Law, and of our common Christianity, the national docu- 
ments of our common country, in the main, happily har- 



AMERICAN CONSTITUTIONAL LAW* 155 

monize. Oar Declaration of Independence and the Con- 
stitution of 17S7-9 taken as members of each other, consid- 
ered as a whole, and construed by its spirit, constitute a 
creditable statement of Constitutional Law, and even without 
the amendments of which they are susceptible, are amply 
sufficient in their provisions, for either the legislative or 
judicial abolition of slavery. An oath to support the Con- 
stitution of the United States is an oath to promote "justice" 
and secure "liberty,''- an oath to adhere to its "self-evident 
truths" and vindicate inalienable human rights. The legis- 
tor perjures himself who takes this oath and refuses to legis- 
late against slavery. The judge perjures himself who takes 
this oath, and does not, when the opportunity offers, proclaim 
deliverance to the captive. 

Objections Considered. 
It has been said by some of the friends of the enslaved, 
that in our political efforts in their behalf, we must not at- 
tempt to wield powers of government not conceded to us by 
those expositors of the Constitution whom the Constitution 
itself provides, (to wit,) the Judges of the Supreme Court — 
that we must give to the Constitution the same construction 
they give it, in the active exertions we put forth. But what 
if they have construed it wrong ? Are our consciences to be 
bound by theirs ? Or may the judicial department dictate be- 
fore hand, to the legislative ? May not a member of Congress 
in the discharge of his duty, vote for the abolition of slavery, 
as he understands his lawful powers, and throw upon the 
judges the responsibility of pronouncing the legislation un- 
constitutional, if they can] And besides, for what object do 
the friends of God and humanity wield their political powers, 
in thisgrand struggle, but to rescue every department of the gov- 
ernment, the judicial, as well as the legislative and executive, 
from the polluting and withering touch of the slave power ? 
Are not the People as truly responsible for a sound judiciary 
as a sound legislature 1 Is it not quite as essential for the 
security of their rights 1 And does not the Constitution 
recognize in the PEOPLE the constitutional guardians 
even of the judiciary itself — the ultimate expositors of the 
Constitution] "JUDGES and officers shalt thou make 
thee in all the gates which the Lord thy God giveth thee, 
throughout thy tribes, and they shall rule the people with 
just judgment." If the present judges decide wrongfully, 
we must indeed sub??iit to their decisions, for the time being, 
though we must not assist in executing their unrighteous 
decisions, nor lose a moment's time in putting things in train 



156 AMERICAN CONSTITUTIONAL LAW. 

■for providing better successors in their place, whenever their 
seats shall be vacant. 

The views of law that have been presented will alarm 
some with the apprehension that they would tend to fluctu- 
ation and change — that conflicting views of justice and equity 
would beget constant uncertainty and doubt. The very 
reverse of all this is the truth. The "glorious uncertainty of 
the law" (so convenient to those who subsist on the spoils,). 
has grown into a proverb already. Who does not know 
that conflicting constructions of statutes and parchments, 
decisions versus decisions, precedents arrayed against prece- 
dents, and technicalities against common sense, have made 
law a vast game of hazard, now, and that a few maxims of that 
same Common Law we would exalt, constitute almost the only 
element of stability, of certainty, or of justice, that remain. 
On this point, and as a conclusion of the whole discussion, we 
introduce a further extract from the correspondence of the 
Oberlin Anti-Slavery Committee with Hon. Wm. Andrews. 

" It may be said that this rule makes every man his own constitution maker 
and law maker. There might be some force in this, if the law of God were 
some indefinite thing which man's arbitrary will might mould into any shape 
it pleased. Rut the principles of fundamental morality are more clearly and 
determinately laid down by ethical writers than the import of the Constitution 
of the Union by the sages of the law. Our public men could have all the 
motives for giving the divine law an honest interpretation which urge them 
to intrepret the Constitution honestly. Mistakes might be committed which 
would need to be corrected by the courts, or by subsequent legislation; but 
the general consequences would he a gradual improvement in the moral aspect 
of society. The fountain would be healthy and the stream salutary, law 
would be venerable in the eyes of men, and the sublime words of Hooker 
would be no rhetorical flourish :. — ' Of LAW there can be no less acknowledg- 
ed than that her s.eat is the bosom of God, her voice the harmony of the 
world; all things in heaven and earth do her homage, the VERY LEAST 
AS FEELING HER CARE, AND THE GREATEST AS NOT EX- 
EMPTED FROM HER POWER. Both angels and men, and creatures of 
what condition soever, though each in different sort and manner, yet all \ykh 
uniform consent, admiring her, as the mother of their peace and joy.' " 



POSTSCRIPT"-— Since the preparation of th.e pree*ding pages, the w niter has re- 
ceived a copy of " Gnrrit Smith's Constitutional Argument against Slavery," which 
contains some citations from "the Madison Papers," to which we had not access, while- 
writing. The following items in the proceedings of the Federal Convention of 1787, 
are worth recording. 

" On motion of Mr. Randolph the word ' servitude 1 was struck out, (by the Conven- 
tion, from Art. 4th, Sect. 2,) and ' service' unanimously inserted, the former being 
thought to express the condition of slaves, and the latter the obligations of free per- 
sons." [How then, can this proyisio.ii be claimed as having been designed to apply to. 
fugitive slaves ?] 

Mr. Gerry said in the Convention that " it ought to be careful not to give any sanc- 
tion to slavery." And Mr. Madison, on the floor of -the Convention, " thought it wrong 
to admit in the Constitution, the idea that there could be property in man." 

Whether Mr. Smith quotes this latter from the " Madisou Papers" or from some other 
authentic source, we are uncertain, and it is not material. We were aware that some 
such language had been used by Mr. Madison in the Convention, but could not lay 
hold of the precise words, while writing, and so omitted any mention of it* 



AUTHORITIES, &c, kc. 

latsT of Books, Documents, Pamphlets, Speeches, JVriti?igs f 
Sfc., quoted, cited, or used, in the preceding View. 

1. The Scriptures, as a standard of principles and ethics. 

2. Constitutional Law, comprising tho Declaration of Independence, the 
Articles of Confederation, Constitution of the United States, and of the 
several States, &c. Washington — Gales & Seaton, 1320. 

3. The Federalist, on the New Constitution, by Hamilton* Madison, and 
Jay, written in the year 1788. 

4. Secret Proceedings and Debates of the Convention assembled at Phila- 
delphia, in 17 37, for forming the Constitution of the United States, &c. 
From notes by Robert Yates, Esq., Chief Justice of New York, and copied 
by John Lansing, Jr., late Chancellor of that State, members of that Con- 
vention. Albany: Webster & Skinners, 1321. 

5. Kent's Commentaries. 

6. Pickering's Reports. (Opinions of Judge Shaw and Judge Marshall.) 

7. Montesquieu's Spirit of Laws. 

8. Common Law. Hale's History of Common Law. Littleton's Inst. 
Wood's do. Coke's do. Noyes Maxims. Chancellor For'tescue. Prin- 
cipia legis et Equitatis — Jenks, Bracton* [Vide C. Stuart's Life of Gran- 
ville Sharpe.] Hooker, Blackstone, Christian. 

9. C. Stuart's Life of Granville Sharpe* (Opinions of York and Talbot — 
of Baron Thompson and Lord Chief Justice Mansfield.) 

10. Free Remarks, &c, respecting the Exclusion of Slavery from the Terri- 
tories and New States. By a Philadelphian ; 1819. 

11. Hon. William Jay. 1. Inquiry, &c. 2. View of the Action of the 
Federal Government in behalf of Slavery- 

12. Letter of Gerrit Smith to Henry Clay* 

13. Theodore D. Weld. 1. Power of Congress over District of Columbia. 
2. Tract on Fugitive Slaves. 

1-1. John Quincy Adams. 1. Speech in Congress on the War Power of 
the National Government over Slavery. 2. Oration at Newburyport, July 
4, 1837. 

15. Ellis Gray Loring. Plea before C. J. Shaw, Massachusetts, in the 
case of Commonwealth vs. Thomas Aves* 1336. 



J5S AUTHORITIES^ 

16. Alvan Stewart, Esq. 1. Constitutional Argument, vide Friend of 
Man, Oct. 18, 1837. 2. Address to the Liberty Party— Liberty Press, 
June 4, 1844. 

17. Hon. Titos Hutchinson, Vermont. Address in Vermont Freeman, Dec.. 
2, 1843. 

1,8. Constitutional Argument, signed " Seventy-Six," in the Emancipator of 
Jan. 4, 1838. 

19. Ohio Resolutions. Resolutions of the A. S. Convention in Ohio, (attri- 
buted to Mr. Chase) Cincinnati Weekly Herald, 1844, Adopted also at 
Buffalo A. S. Convention, Sept. 1843. 

20. Ichabod Codding, in Charter Oak. Copied into American Freeman, 
March 20, 1844. 

21. Proceedings R. I. Anti-Slavery Convention, Feb. 1836. 

£2. Full Statement, &c, before the Committee of the Legislature of Massa- 
chusetts, by Anti-Slavery Committee. Boston, March 1836. 

23. Anti-Slavery Lecturer, Utica, 1839. 

24. Liberty. Pamphlet, Albany, 1837,. 

25. Slave Laws. Stroud's Sketch — Prince's Digest-'-Acts of Maryland, 
Tennessee, and Louisiana. 

26. Oberlin Anti-Slavery Committee. Correspondence with Hon. William 
Andrews. . 

27. Writings of Myron Holley. 

28. Eminent Statesmen, Civilians, &c. Washington, Jefferson, Madison, 
Dr. Franklin, Judge Wilson,. Gov. Randolph, Wm. Pinckney, John Jay, 
Gov. Pownal, Dr. Rush, Gen. Heath, Judge Story, Chief Justice Ellsworth, 
Judge Marshall, Mr. Duponceau, Hall's Law Journal, Hawk's N. C\ Re- 
ports, Chief Justice Taylor, Lord Chief Justice Holt, Lord Tenterton, &c. 
&c. Also, among slaveholding and pro-slavery statesmen, &c. B. Wat- 
kins Leigh, J. C. Calhoun, Henry Clay, Gov. McDuffie, Mr. Pickens, Mr. 
Hammond, Prof. Dew, Gen. Harrison, Gov. Marcy, Gov. Everett, Mr. 
Upshur. 

29. Observations on the American Revolution, published by Congress, m 
1779. 



TABLE OF CONTENTS 



INTRODUCTION, Page, 

Sure triumphs of truth — Former Construction of the British Constitution, 
by York. Talbot, Blackstone, and- Mansfield. New Construction, 
involved in the decision of Lord Mansfield, in the Somerset case. 
Revolution in English Jurisprudence. Secret of that Revolution. 
Granville Sbarpe. , Origin and foundation of law, immutable and 
eternal, . . . . 3 

CHAPTER I. 

The Question at Issue, 

Its. meaning and its magnitude. Impossibility of evasion. Testimony 

of American Statesmen. No middle ground. Illustrative politics 

of the country. State action. Action of the Federal Government. 

The Alternative,. . . ... 7 

CHAPTER II. 

Strict Construction-. The Constitution of 1787-9, considered 
on the principle of Strict Construction. 

SECTION I.— The Claims of Slavery. 
Modern elate of the supposed "compromise." Remaikable process of 
proving it. Strict Construction defined. " Persons held to service \ 
and labor." Apportionment of " representatives and direct taxes." 
" Migration and importation." Suppression of insurrection. Pro- 
tection against domestic violence. Reserved rights of the States,.. 1£ 

SECTION 2.— The Claims of Liberty. 
The Preamble, Union, Justice, Domestic Tranquility, Common Defense, 
General Welfare, Security of Lirerty. Powers of Congress. 
Powers over Commerce. A Republican form of Government, (de- 
finitions of a Republic, by various authorities.) Security of Libert v, 
"due process of law." Slavery, in the Territories and Federal 
District. The Constitution and the District of Columbia. Restric- 
tions on State power. Inhibition of " bills of attainder," " laws im- 
pairing the obligation of contracts," " titles of nobility," (aristoc- 
racies, feudalism) " making war," "troops in time of peace." Im 
munities of citizens in each State. The summing up. Shylock and 
his pound of flesh. Conclusion, ......... ...... 3!> 

CHAPTER III. 

Spirit of the Constitution. The. Constitution of 1737-9, consid- 
ered in the right of its spirit, its objects, iijs furposes, its.prin- 
ciples, its aims. 

SECTION X.—r Preliminaries. 

Spirit of the Constitution defined. Its province and authority, as a rule 

cf construction. An obvious but neglected distinction, 81 



160 TABLU OF* CONTENT'S, 

SECTION 2. p m 

Spirit of the Constitution, as manifested by the instrument itself-«-by its 
Preamble— ^ts grant of powers— its construction of the Federal Gov- 
ernment—its care of personal rights — -its provisions hostile to slave- 
ry — its affinity to Common Law. Specimens of Common Law. Its 
power, 4 ..........;............„.;..... i . 33 

SECTION 3. 
Spirit of the Constitution, as attested by History, by Civilians and Jurists. 

Extent of the National power, i » » ; * i ...... i ........ a « i ... * . * 102 

SECTION 4. 
The Constitution construed. The " Spirit of the Constitution" on the 

Wool-Sack, ili'itik : i; 114 

SECTION 5. 
Special pleadings — their fallacy, . . * ; ..........;.. .. j ...... . 121 

CHAPTER IV. 
Of the Legality of Slavery by the Constitutions dp the Slavk 

States. 
State Of the Question. Abolition of Slavery in Massachusetts. Slavery 
unconstitutional in Delaware. Is Slavery constitutional in Mary- 
land ? Other States. North Carolina, South Carolina, Louisiana, 
Kentucky, Tennessee, Mississippi. Conclusion, ...... t t ...... . 127 

CHAPTER V. 

The Declaration of Independence. 
The Charter of Liberty, but never claimed by Slavery. The Declara- 
tion a part Of American Constitutional Law. Proofs of this posi- 
tion. A constitution of government denned. The Constitution of 
1776 still Unrepealed. Historical facts. The Alternative. The 
Declaration of Independence* if the act of the separate States, 
equally fatal to legal slavery; The Declaration, never repudiated 
by the slave States, is still binding Upon them, ....... t . ; . 134 

CHAPTER VI. 

Of Slavery unDer Colonial Authority. Its Legality Ques- 



tioned, 



142 



CHAPTER VII. 
Nature and 1 foundation of Government and Law. 

Parchments, papers, precedents. Whence their authority ? Compacts — 
On whom binding? Government as an ordinance of God. The 
M Social Compact" an exploded fiction. A more substantial theory 
needed; Where shrill we find it ? Civil government a science ;• 
compared with other sciences. Has its foundation in facts. Nature 
and relations of man. Scripture prophecy. First principles im- 
mutable. Can not be set aside by compacts and parchments. Re- 
cognized by Common Law. What is Common Law ? Whence' 
its paramount power? One universal law. Founded on the Di- 
vine Will. Constitution of civil government not arbitrary. Absurd- 
ities can not become law. Law can not be created by man— can 
Only be discovered, obeyed, and applied. Harmony of our Nation- 
al Documents with these principles. Objections answered,. .... . 145 

JR n '05 



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AMERICAN CONSTITUTIONAL LAW, 



IN ITS BEARING UPON 



AMERICAN SLAVERY. 



■'The Reasonableness of Law is the Soul of Law." — (Jenks.) 
Common Law Maxim. 




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